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RESOLUTION 93-20803 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' 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-01 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: Section 1. 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 day of M. , 1993 . /( 11 1 &ill 0 k MAYOR ATTEST: 'ORM APPROVED ' .-----Ccika,,\A. E---irrx..., CITY CLERK LEGAL DEPT. 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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 AIA 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, Aj ami l & 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 - 3 - GTH\BARSHK\95449.2\05/19/93 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 prejudice; iii) dismiss the Counter- claim filed by Yacht Club and Pacific and all claims filed or that could have been filed, with prejudice; 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. - 4 - GTN\BARSHK\95449.2\05/19/93 `` 4 . Developmental 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 Development. 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 180-day period for commencing construction of the Sunset Harbour Development commences upon the recordation of the Covenant. 6. Withdrawal of Requests for Rezoning and Comprehensive 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 Schapiro/Bermello 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 Schapiro/Bermello Plans. In the event that the Final Order in the Circuit Court Lawsuit is not - 5 - GTH\BARSHK\95449.2\05/19/93 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 Schapiro/Bermello 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 Schapiro/Bermello Plans prior to the Parties' execution of this Settlement Agreement. - 6 - GTH\BARSHK\95449.2\05/19/93 ki 9 . Zoning Regulations. 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. Streetscape Program. 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 Alton 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 Schapiro/Bermillo 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 Streetscape Funds shall be spent on improvements to Purdy Avenue 7 - GTH\BARSHK\95449.2\05/19/93 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. 11. Credit for Previously Paid Permit Fees. The City acknowledges Yacht Club's prior payment of $141, 159 .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 $17, 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. GTH\BARSHK\95449.3\06/11/93 12 . 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, solely 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 31, 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 174 residential units located on the Property for the limited purpose of public sewer capacity only, 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 - 9 - GTH\BARSHK\95449.3\06/11/93 1 1 expressed above, apply only in the event that the Property is developed consistent with the Covenant. 13 . Transferable Development Rights. 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 (TDB'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 against each other, that was asserted or that could have 10 GTH\BARSHK\95449.3\06/11/93 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 Agreement. 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. 17 . 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. Counterpart Originals. This Settlement Agreement may be executed by the Parties in counterpart originals with the same - 11 - GTH\BARSHK\95449.2\05/19/93 f 1 r r • force and effect as if fully and simultaneously executed as a single original document. 21. Entire Agreement. 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 Only. The agreements contained herein shall be solely for the benefit of the Parties hereto, their successors and assigns. 24 . Cooperation. 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. Binding Upon Successors and Assigns. 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 Agreement. All of the Parties to this Settlement Agreement have participated fully in the negotiation and - 12 - GTH\BARSHK\95449.2\05/19/93 • preparation hereof; and, accordingly, this Settlement Agreement shall not be more strictly construed against any one 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 . Severability. 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 . Dispute Resolution Concerning Agreement. 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 - 13 - GTH\BARSHK\95449.2\05/19/93 • M 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. Authority to Execute Agreement. 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. - 14 - GTH\BARSHK\95449.2\05/19/93 1 IN WITNESS WHEREOF, the Parties have executed this Settlement Agreement. YACHT CLUB SOUTHEASTERN, INC. Witnesses: Fitagoii/ Vii: HOWARD SHAPIRO, VICE PRESIDENT .410 - Age ' 17, Date: PACIFIC INTERNATIONAL CONSTRUCTION, INC Witnesses: y: HOWARD SHAPIRO, PRESIDENT ; ./1114/ Date: 7/2 (0/i23 CI OF/MIAMI BEA" Witnesses: A( r By: S ' Y +OUR GEL ER, MAYOR Date: 1&A...A E.V0, BY: RICHARD E. BROWN, CITY CLERK FORM APPROVED LEGAL DEPT. Date : tit_OM By c-9 \is.c\S Date - 15 - 6T11\RARSIIK\95449.1\01/16/93 LEGAL DESCRIPTION The west one-hal[ 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 115 , 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 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 . 0AC040901/R EXHIBIT "A" (to Settlement Agreement with City of Miami Beach) IN THE CIRCUIT COURT OF THE 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 MIAMI BEACH; DADE : COUNTY; YACHT CLUB : SOUTHEASTERN, INC. ; and : PACIFIC INTERNATIONAL CONSTRUCTION, 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 BEDZOW KORN KAN & GLASER, P .A. 1700 Convention Center 11077 Biscayne Blvd . PH-Ste . Miami Beach, FL 33139 P.O. Box 61-9002 Penthouse Suite Miami , Florida 33161-9002 By: By: JOHN DELLAGLORIA, ALAN J . RAN, Deputy City Attorney 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 : GENERAL JURISDICTION DIVISION PROPERTY OWNERS , INC. , et al . , : 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 came 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 with 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) J ' 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 rio 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 0AC040904/R "EXHIBIT "C" (to Settlement Agreement with City of Miami Beach) ( .uouIooabV quouloT?RoS oq) ZIQIIIX�I a LI SOcINOJ T 'JOT 'To .zt,OSO 'UotTOD-PT.znq AOUCN 'UTogspTas ooTpuuD 'ATobpPI 'w u TOT.zqud 'ATObpTH •J U ULToN 'tuogT.zow 'Q rTauw '.,zo}i •Z aouugsuop '.zouTaM A.ttD 'aouTOM to)[ I UI2Sns 'aocIT.zoN nags l aogT.zoH •14 Ma.zpuv 'uti gt.zbul •V UXI2T TTTM ' •ouI ' s.zoumo icq.zodo.zd ;,, puu c spurTsI gasuns ' .oUI 'uoTqon.zgsuo0 TuuoTgruaoqul OT.TOud 'gnZO gg0PA uoomqoq puu Aq ' C661 ' pogtp quomoo zbv quauzaTggaS u jo gaud sT puu oq quuns.znd pognoaxa sT quauzdoTanaU anoq.z?I-I gasuns buTu.ZOOuoD squ 'uOno7 OATg3TagsoH Jo uOTqu.z?ToOU sTgq_ ' SV JIHM sosn auTICUt puu TuTO.zaunuoo ' TrTquopTso.z A rTTTouu SnoT.ztn put quauzdoTanap TtTquapTsa.z i LJTTM Icgaodoad oq . doTonzp og spuo;uT gnTO gttou' ` sv flIaHM ' („A;-zodo-zd„ 044 st off. po.z.zoJO. .ogguuTo.zoq) „N„ gTgT'X3 uT pagT.zOsap Agaodo.zd auq. oq LTgT; OTdUITs aoI ogg spTog gnTo ;110'2 'SV32I5HM papT no.zd aagj uuT aaau su bUTgTam uT posuoTo.z ST quOuzn igsuT sTqq. su auzT4 tions TTqun ( „.zouMo„ ) u� .zo uto un o 'gbnoagq 'Aq buTIUTtTo suos.zad TTu gsuTt5u p .z pug ' soassoT 'saabubgaouz 'soogsnaq 'SoATququasoada.z Truosaad ' subTssI pug saossaoons 's.zTog sgT 'gnTO Juo2A uo buTpuTq aq 'Tugs uoout oq oTgT� auk u�TM buTuun.z s�.utuanoo auk 'MoTaq .TuM putT paaTA odo zd ouq. uo sosodulT puu 'seauToap 'sa){-uz JTT.zuqunTon .zosop Acto.zoq ' ( ugnTD quorA„) •ouI 'u.zogstotllnos gnTO guouA LKawaozmnaa unoauvH Lasmns ONINUaDNOD SINIENaAO3 anisolussau Io NOLL n oaa I f Howard Jackson, William C• Taylor, and Terri Daoud (collectively referred to as the "Settling Parties") ; NOW, THEREFORE, in consideration' on of the premises , Yacht Club hereby agrees as follows: 1. lln Units Alon Ca nal . With respect to the portion Property along the canal , as depicted on Exhibit B with the Pro p of p cross-hatching ("Property Along the Canal") , Owner agrees to el l in construct no more than twenty dwelling units, at a height not to flood criteria to peak of exceed thirty-five feet above minimum minimum of two stories inheigrlt. ��or roof. Such units shall be a 2 only, the phrase "dwelling purposes the of paragraphs 1 and shall mean single-family ng unit (s) " le-family detached homes , townhomes , and/or such other less intensive residential uses that may be permitted by the City of Miami Beach. 2 . Landscaping. The landscaping for the portion of the Property no less than as shown on Exhibit p Y Along the Canal shall be �-e reasonable efforts to provide the trees C. Owner agrees to us of twenty-five feet in height, if shown thereon at a minimum Y feasible; otherwise, such trees tees shall be a minimum of sixteen feet inheight. Any deviation by Owner from the landscaping for the � • Alongthe Canal shall be submitted to the portion of the Property Sunset Island 3 and 4 Property Owners, Inc. , for its reasonable p y 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 1 ' t Seawall on the canal and the no other improvements between the be . along the canal . ling units With respect to the dwelling W� ion 20th Street.Dwell.in Units A Exhibit B 3 • as shown on on 20th Street, the Property along forty-six portion of more than forty-s lx construct no withshading. Owner agrees to feet above minimum sixty t not to exceed • units, at a height this paragraph, dwelling purposes of p peak o f roof• For d criteria to s single-family flood a artment , units" shall mean p phrase "dwelling less intensive the p such other townhomes , and/or detached homes, t of Miami Beach. the City be permitted by uses that may the Property residential 1 in units on for the dwelling Parkin• parking from the 4 . units (away Canal will be located behind such Tong the 1 andProperty, canal) under cover.ugur p is used on the Pr°p Ai l ink- Where piling 5 . - onlyaugurpiling. Owner shall use Biscayne Bay,ro erty along n. the Ba Thep P 6 . Pro.ert Alo as shown on ExhibitAlong the D with cross-hatching ("Property accordance with the Bay") , shall as permitted in dance be constructed p Sunset . ' ro AIA entity=d gun by Jaime Schapl roved plans prepared _ Plans" ) , and approved 1988 (the "Approved November 28 , Harbour Place dated Nov Plans as may be Approved to the • h such minor modificationsshall with herein, however,allowed by the City of Miami Beach. Nothing units on the tin residential wner from constructing shown preclude ° _ height than as mho Along the Bay at a loWer density or property under any .� shall not , however,on the Approved Plans . Owner 3 r ' , ' . I ' units at a greater residential dwelling • tanCe, construct r circus permitted by • use than presently p • or intensity of height, density, Activity No. of Miami Beach under Building Permit the City Along the Bay. 1 38II00095 for the Property er frorn own • Nothing herein shall prevent 7 . VarlanCeS. Approved variances from the applying to governmental entities for sit subject to theincrease the height or density,Plans that do not and 4 • • n Sunset Islands 3 persons, including' hts of all affectedp rigthereto. to oppose, agree, or stand silent Property Owners, Inc. , p • C • S of this Covenant station. The provision 8 • Term of_ Decl. ds upon their recordation in the Public decor shall become effective p Florida, and shall continue in effect for a period of Dade County, after which • ears after the date of such recordation, of thirty Y for two successive 11 extended automatically time they shall be then in writing by the years each, unless released periods of ten yea of such r if applicable, an association of the Property' (or, p owners Inc. S 3 and 4 Property Owners , - owne ) and the Sunset Islands this Covenant may be • The provisions o f � • Mod i f i cat Z on. amended, added to, derogated, deleted, modified,ied, or changed from time to time by i executed by the then owner or recorded instrument ciation of it o f the owners of all the Property or an assn major Y amendment, property owners , provided that such modification, such prop Y the Sunset Islands 3 and approved by or release is also app d in writing -- aws . a l l applicable by-laws . Owners,4 Property own , Inc. , in accordance with . cd or released, the then Should this Covenant be so modified, amend 4 1 forthwith execute a • is successor, c,hal r of the Property or 1 def ica- owne rl such modifica- tion, and acknowledging written instrument effectuating tion, amendment, or release. t. The limitations of this Declaration of l o . Fn f orcemen Restrictived shall be enforceable only by a Covenants shall run with the land an to Settling Party or Settling Parties and, be by provided by law, their privies . Enforcement shall the extent prow �. or p ersons v io 1 at ing action at law or in equity against any part1e,, S either to restrain violate any covenant , or attempting to vl violation or to recoverthe damages . The prevailing party in action or suit shall be entitled to recover, in addition to costs eats allowed by law, such sums the court may adjudge and disbur5em services of his attorney. to b � reasonable for the d on Title. This Covenant shall not be construe 11. No Cloud ro _ anyportion of the Prop- erty P • the Property or on as a cloud on title on of an • occurred. The recording which construction has erty upon unit individual dwelling � certificate f or each ;�- engineer's t in the formattached as Exhibit E shall constructed on the Property e licabl • satisfaction of all app • conclusive evidence of constitute unit. Such ' s ions of this Covenant as to each such dwelling prove � certificate may be solely relied upon by any mortgagee , engineer s c or person who acquires an er lender, purchaser, or any other entity interest in the Property. 5 of these covenants, by • lit , Invalidation of any 12 . Severabl rt shall not render the other provisions of this judgnent or cou , Covenant invalid. ed ed on this day o f sealed, q Signed, executed, and acknowledged , 1993 . OWNER: delivered YACHT CLUB SOUTHEASTERN, INC. , Signed, sealed anda Florida corporation, in the presence of: By: HOWARD SHiAPIRO Vice President aIH\sAws \e1w/.)\0)/24/1) 6 LEGAL DESCRIPTION Lots 10 and 11, Block 15, of "Island View Subdivision" , according to the Plat thereof as recorded in Plat Book 6 , Page 115 of the Public Records of Dade County , Florida . and 27 , 28 , 29 , 30 , 31, 32 , 33 , 34 , 35 , 36 , 37 , 33 , 39 , 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 , Page 144 of the Public Records of Dade County , Florida. MAC000334L/B EXHIBIT "A" (to Declaration) d,,p 1•v om~ --_lave c, _ .. • .. "0i~P•♦_ tom'` • •.S'.••=.',:lua 11 ,4 401 _ _ . n *vd-:,_ tt..74,Appx1.1.5:_, .:i.wie .....: .....ie _ .-,. :•_.•........,..• . . ,. a...p..4,p. ..4„,,6,„.,,0,10,4:. .::.:-.-:7• ▪..,, .•. :too/Co Arlie, --1:.• . 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C9:•..**X9.4:4:9.9:.•10..9%.9:17.4410:;:04.1%.A.A.;.~4..407;..O.F.V.A*. 47A- 4 a6r4W9.41°A.V.A.A.6%.44%..;:".Ar.WeRVO.M.41:4 r.:%..9.1.F.r0.:WV 1 1-.7: .. ... te4s9.44.44...4.42.4"Aed04PAPaterkaPARb40%.46.......04X.:4e.X.X.X.4:""......:W..0."•.:.4..X.2.41Cede.0:14X4:4:44/W:44:eige,•••••:40.44..),..lriP.40._vti4r)::::.."*...:..::•::44.0.4i4441.01:0.4 ' i 1 i :• . . . • . .941:..A 1,..••••4.9.44.9:10.16 We w 1 . ‘It•VAiii••••••••••eti A r•-•:, t 1;;, . X t 4 WA At:Pee** 1 v -......' fP••••••‘4C+44•41V•Ve 1 ; •41 te••••••••••••••A tee ki" 1 1 . ee•PA.4'4:•••••5 e•4:4• .. . • •:: / 1 if i NM&A Coi r w_i•et. ::.- l'eailleee•ii.'"_ .. ----- / , 1 . %Ter opro t, , -•----•—--r-- :1 f ••••• •••4 p,-0. i • t M . i . 1 ' 1 • ' ...1friew- 7-1. ...4.f . , ...._ .._.In . Ef i ---' in -------- 1 • • 111 . 1 . e r— -- -I . . i - pi_ _ _... cii f 1 o — . )) ,............•........... it.. —1 .....--... . . 1 Sj.k . . 1 ill . rt-fali ED 1 ---- . .....________ , i : H• • _ —T ) F, ' • • ,. ...\ :7) -... ..-. . ......... . ., .. , . Ilk --t..,....._-, Ill ' !i;-• ..... . I :.: .._-: . • -------------- t . -- -----, ' ,--: •_. 1 -- ---- 0 jiii 11, in ....:, . --- I 1 a -- ..7. ita - ---- L __ __ 1 ii ...: r.-------, i 1.----- = •if--- — f_L___J ,:, ., . . •I...-. .-- 3 , ----- . . ' 1 1 ? _.,, • , 1 i,,... . c , C 1 •h ---iL_ • • . . • This Instrument Prepared by and Return to: ALAN J. KAN, ESQ. BEDZOW, KORN, KAN & GLAS ,R, P .A. 11077 Biscayne Boulevard , 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 uni t) upon the property described in Exhibit "A" attached hereto, was completed in substantial compliance with that certain Declaration of Restrictive Covenants concerning Sunset Harbour Development, recorded in Official Records Book , at Page of the Public Records of Dade County , Florida. FURTHER AFFIANT SAYETH NOT. zan - -- Registered Engineer No. [notarial continues on page 2 hereof] EXISIBIT "E" (to Declaration) SWORN TO AND SUBSCRIBED I3SCRIBED before me, the undersigned author- ity, this day of 19 , b y the Affiant, who is personally known to as me or has/have produced _ • identification, and did take an oath. My Commission Expires: of Florida Notary Public, State MAC040905/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 DELLAG.LORI A, Deputy City Attorney City of Miami Beach 0AC040906/R EXHIBIT "E" (to Settlement Agreement with City of Miami Beach) WRIT"T'EN CONSENT ACTION OF ALL MEMBERS OF THE BOARD OF DIRECTORS OF YACHT CLUB SOUTHEASTERN, INC. WHEREAS , YACHT CLUB SOUTHEASTERN, INC. ("Yacht Club" ) , i s a ► Florida 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 15, of ISLAND VIEW SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 6, at Page 115 , 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 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 PROPERTY 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 Yacht Club, Pacific International Construction, Inc . ( "Pacific" ) , City of Miami Beach (the "City" ) , and Metropolitan Dade County, Florida (the "County" ) ; and 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 engaged in extensive 1 COMPOSITE EXHIBIT "F" (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 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 Yacht Club and will sat i f ac tor:y resolve any and all disputed claims between the Association and Yacht Club and Pacific, as is more ' specif ically set forth in the Settlement Agreement; and WHEREAS , Yacht Club' s Board of Directors , in accordance with the procedures set forth in the By-Laws of Yacht Club and the applicable Florida Statutes, has duly approved and ratified the Settlement Agreement at a meeting held on 199 ; and WHEREAS , Yacht Club' s Board of Directors 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 is a validly existing Florida corporation and is in good standing under the laws of the State of Florida as of this date and hereafter ; 2 • 3 . The Settlement Agreement has been duly approved by the Board of Directors of Yacht Club. 4 . Yacht Club and its Board of Directors 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 Motion 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, does 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 default 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 authorized 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 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 Yacht Club and is unr e voked . YACIIT CLUB SOUTHEASTERN , INC. , a Florida corporation B y = --_- --- President B y: — - --- Secretary [signatures continue on following page] 3 1 • [signatures continue] DIRECTORS '907/R 4 ♦. . • . t WRITTEN CONSENT ACTION OF ALL MEMBERS OF THE BOARD OF DIRECTORS OF PACIFIC INTERNATIONAL CONSTRUCTION, INC. - - - -- - ------------- WHEREAS , PACIFIC INTERNATIONAL CONSTRUCTION , INC. ( "Pacific" ) , is a Florida corporation, and is the general contractor responsible [or the construction of the Yacht Club Southeusteiri , Inc . property ( the "Yacht Club Property") described as follows: Lots 10 and 11 , Block 15, of ISLAND VIEW SUBDIVISION, according to the Plat thereof, as recorded in Plat Book 6, at Page 115 , 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 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 PROPERTY 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 "F" (to Settlement Agreement to City of Miami Beach) s 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 By-Laws of Pacific and the applicable Florida Statutes, has duly approved and ratified the Settlement Agreement at a meeting held on 199 ; and WHEREAS , Pacific' s Board of Directors warrants and represents that they have full power and authority to represent of Pacific; NOW, THEREFORE , be it resolved that : 1. The foregoing recitations are true and correct; 2. That Pacific is a validly existing Florida corporation and is in good standing under the laws of the State of Florida as of this date and hereafter ; 2 .. , , -, has been dpi 1.y approvedby The Settlement Agreement h 3 . the Board of Directors of Pacific . of Directors have full power4 . Pacific and its Board � ., t Agreement and to enterthis into Sett.le�nen, . perform the obligations thereunder. . . .� ted on the Settlement The actions contemplated Motion to 5' including filing of a JointOrder Agreement , of Final grid Joint Motion and entry and enforceable Abate binding thereon, are valid , execution of the Pacific and, that the - crit and against President Agreement by the not and Settlementdoes pacific , on its behalf ,Secretary of order , decree , writ ill not violate arty judgment : governmental w court or -� or injunction of anyc against Pac:it ic , ri t commission s i or1 or agency departure result in or cause the and does not and will not � anyagreement , t or a default under other breach o � t undertaking , Of mortgage, contract, instrument or document which Pacific is a part . ar of Pacific are hereby 6 . The President and Secretary authorized on behalf of Pacific , to execute Xecute u i the ed Agreement and all instruments req Settlement A9 delivered pursuant to the to be executed and d t which shall be binding upon Agreement Settlement 9 execution thereof is herebypacific and the ratified. ,� true �l r�d e undersigned hereby certifies that the above is a Th bythe Board of Directors at a correct copy of the resolution approved duly called d meeting held on the day of resolution appears in the minutes of 199 and the adoption of the Pacific and is un r e vok ed- PACIFIC INTERNA'I'IONAL CONSTRUCTION , INC . , a Florida corporation By : President By: Secretary [signatures continue on following pagel 3 4 0,4 4 . [signatures continue] DIRECTORS : OAB040908/R i 4 c�< w a . 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 1, 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 Property Owners, Inc. v. City of Miami Beach, Case No. 90-30543-CA- 01 0-30543-CA- 01 (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 GTH\BARSHK\95449.2\05/19/93 r r 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 Lawsuit, 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: 1. Recitals. The foregoing recitals are true and are hereby incorporated by reference. - 2 - GTH\BARSHK\95449.2\05/19/93 ORIGINAL RESOLUTION NO. 93-20803 Authorizing the Mayor and City Clerk to enter into an agreement between the City and Yacht Club Southeastern, Inc., ("Yacht Club"),