HomeMy WebLinkAboutExhibit File CEx ibi
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SETTLEMENT AGREEMENT
AND DECLARATION OF RESTRICTIVE COVENANTS
HIS AGREEMENT is made and entered into this day of April,
2008,, by and between the NATIONAL TROPICAL BOTANICAL
GARDEN (herein referred to as the "KAMPONG"), a not -for -profit
federally charted national tropical botanical garden and EFC HOLDINGS,
INC. (herein referred to as the "DEVELOPER"), a for -profit corporation of
the State of Florida.
WITNESSETH:
WHE.REAS, EAS, the DEVELOPER seeks to develop the property located 4055
Douglas Road ("Subject Property") in accordance with a plan for
development commonly referred to as "Grove Estates" (hereinafter
"Development Plan"); and,
WHn REAS, the DEVELOPER seeks certain entitlements from the City of
Miami ("City") in order to realize the Development Plan; and,
WHEREAS, the KAMPONG owns and operates the immediately adjacent
property to the north of the Subject Property as a tropical botanical garden
dedicated to the research, study, and appreciation of a host of important and
exotic plant species; and,
WHEREAS, in addition to the collection of important plants, the
KAMPONG also comprises certain structures of great historical and
architectural significance;
WHEREAS, the KAMPONG frequently hosts symposia, conferences,
meetings, gatherings, and assemblies for the purpose of promoting research,
protecting plants, and preserving the unique work and collections located on
its properties; and
WHEREAS, the KAMPONG has objected to the Development Plan at
certain public hearings during the entitlement process for the Development
Plan; and,
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WHEREAS, the DEVELOPER and the KAMPONG wish to amicably
resolve these objections through modifications to the Development Plan;
and.
WHEREAS, in order to induce the Kampong to withdraw its objections and
support the Developer's modifications to the Development Plan, the
Developer has agreed to the restrictions and conditions set forth below.
NOW, THEREFORE, in consideration of the covenants contained herein
and :he performance thereof, the parties do hereby agree as follows:
1.0 RECITALS
1.1
The foregoing recitals are true and correct and are incorporated herein
by reference. All exhibits to this Agreement are hereby deemed a part
hereof.
2.0 DEFINITIONS
2.1 The term "Development Plan" means the plan for the development of
Grove Estates as set forth on the exhibit attached hereto as Exhibit
«A„
2.2 The term "lot" shall refer to each and every lot as set forth and
numerically identified on "Exhibit A."
The term "no build zone" describes a portion of a lot in which there is
a direct and express prohibition against the erection, maintenance, or
placement of any building or structure including by way of non -
exhaustive illustration accessory structures, cabanas, pool houses,
mechanical elements or pool. The term "no build zone" is defined as a
more restricted zone than a "setback" as defined below. Underground
utilities, drain fields, septic fields, and the like shall be allowed to
occur within the "no build zone" provided they are not visible upon
their completion.
2.4 The term "setback" is defined in this agreement independently from
any other commonly understood definition of the term in a zoning
code or ordinance to mean, for the purpose this agreement, the portion
of a lot where there is a direct and express prohibition against
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the erection, maintenance, or placement of any principal building or
structure but in which such area the placement of a pool or accessory
cabana or pool house is permissible. The term "setback" is defined as
a less restrictive zone than the "no build zone" set forth above.
Underground utilities, drain fields, septic fields, and the like shall be
allowed to occur within the "setback" provided they are not visible
upon their completion.
2.5 The term "landscape buffer" shall mean an area adjacent and
contiguous to the Kampong's property line designed by a professional
and licensed landscape architect appointed by EFC and approved by
the Kampong whose approval shall not be unreasonably withheld. The
purpose and intent of the landscape buffer is to provide a place for
tree mitigation, the development of canopy, while at the same time
providing visual and spatial buffering between the Kampong and the
Development Plan. The landscape buffer shall be measured from the
property line that separates the Subject Property from the Kampong.
It is the intent of the parties that this area be comprised of a tree pallet
composed of native specimen together with exotics. By way of non -
exhaustive illustration, the landscape buffer shall include: live oaks,
satin leaf, gumbo limbo, mastic, Jamaica dogwood, mahogany, white
and orange Geiger, sweet acacia, and Jamaican Caper. With regard to
tree size, the largest grown container size plants are acceptable.
The term "height" shall refer to the height as measured from flood
level or average sidewalk or crown of road elevation, whichever is
higher, to (1) the top of the roof for flat roofs, (2) the deck lines for
mansard roofs, and (3) the average height between eaves and ridge for
gable, hip and gambrel roofs but the maximum height of the ridge of
any roof (or element thereof or thereon) shall not exceed thirty (30)
feet. No other feature shall be permitted to exceed the maximum
height of twenty-five (25) feet as set forth herein. The purpose of this
immediately preceding sentence is to prohibit spires, cupolas, widow -
walks, roof -top cabanas, flags, mechanical equipment, or other
tangible object from piercing the height limits set forth herein.
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3.0 INTENT OF THE PARTIES
3.1 It is the intent of the parties that the terms and restrictions set forth
herein constitute a restrictive covenant running with the land, binding
on successors, assigns, and owners of individual lots and enforceable
by the Kampong as against the Developer and the individual lot
owners by way of injunctive relief.
3.2 It is the intent of the parties that the restrictions set forth herein are for
the benefit of the Kampong, shall be recorded on and against the
Subject Property, and separately on each lot, and noted on the final
approved plat, and shall be incorporated into the governing design
guidelines and associational rules that shall govern the development
of the Subject Property. The Developer shall disclose this agreement
to each and every potential buyer who shall initial a copy of this
agreement as part of the closing transaction. A copy of the initialed
copy shall be forwarded to the Kampong within ten (10) days of each
closing. No amendment shall be permissible to said documents that
modifies, relaxes, or eliminates the restrictions set forth herein
without the express consent of the Kampong. Developer is to pay all
costs associated with the recording of this agreement and shall provide
a recorded copy to the Kampong forthwith bearing an O.R. Book and
Page stamp.
3.2 It is the intent of the parties that the restrictions set forth herein shall
be incorporated as conditions of the City's approvals of the
Development Plan which shall be modified to reflect and accept these
restrictions.
3.3 It is the intent of the parties that this Agreement shall be binding on
the Subject Property, the Developer and its successors and assigns
conditioned upon approval by the City of Miami of a certain appeal
from Historic and Environmental Preservation Board and the Major
Use Special Permit Application on April 24, 2008. Further,
conditioned upon the Kampong, through its legal counsel and Director
David Lee to appear in support of Grove Estates at the public hearing
before the City of Miami Commission and advocate that the City
Commission grant the appeal from the HEP Board decision of March
4, 2008 and approve the Major Use Special Permit. The Kampong,
through its Director, Dr. David Lee, shall advise and contact via email
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Clerk
Friends of the Kampong to let them know of the settlement and invite
them to attend the hearing in support of the settlement and approval of
Grove Estates as outlined above.
3.4 It is the intent of the parties that the balcony directional alignment
restrictions set forth in section 4 below do not operate to prohibit or
restrict a balcony from facing north where it is located outside of the
restricted area on any lot or lots. A restricted area shall refer to a no
build zone, a setback, or a supplemental second -floor setback as
defined or described in section 4 — including subsections.
4.0 LOT SPECIFIC RESTRICTIONS
4,1 The lot specific restrictions set forth herein are anchored to the lots as
described and numbered on Exhibit "A" and in the supporting
materials submitted by the Developer to the City for purposes of
approving the Development Plan. All lateral dimensions set forth
herein are running from the property -line between the Kampong and
the Subject Property.
4.1.1 Lot 1 Restrictions: no restrictions are imposed on Lot 1 other than
those imposed by the City's codes and ordinances for the entitlements
sought. Height limit is 25 feet.
4.1.2 Lot 2 Restrictions: a ten (10) foot landscape buffer within a twenty
(20) foot setback. Height limit is 25 feet.
4.1.3 Lot 3 Restrictions: a ten (10) foot landscape buffer comprising the
first ten (10) feet of a twenty (20) foot no build zone both together
comprising the first twenty feet of a thirty (30) foot setback. Height
limit is 25 feet.
4.1.4 Lot 4 Restrictions: a no build zone is imposed on the north west
corner which shall mean the northwest one half of Lot 4 with a no
build zone of thirty (30') feet of the lot as shown cross -hatched on
Exhibit "B." Height limit is 25 feet.
4.1.5 Lot 5 Restrictions: a fifteen (15) foot landscape buffer comprising
the first fifteen (15) feet of a twenty (20) foot setback. A prohibition
against the placement of a pool on the northeast side of the lot within
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thirty (30') feet of the property line. Accessory structures such as
cabanas are permitted on the north side of the lot within twenty (20) to
forty (40) feet from the north property line provided it is: (1) no taller
than fifteen (15) feet or one story which ever is shorter; and, (2) it
possesses a solid wall to serve as a visual and sound barrier.
4.1.6 Lot 6 Restrictions: a fifteen (15) foot landscape buffer comprising
the first fifteen (15) feet of a thirty (30) foot no build zone. Any
second story, floor, or portion of the building taller than fifteen (15)
feet shall be setback an additional (10) feet or forty (40) feet from the
property line. Any terrace, balcony or other similar feature shall face
east, south or west but not north towards the Kampong lot line.
Height limit is 25 feet.
4.1.7 Lot 7 Restrictions: a fifteen (15) foot landscape buffer comprising
the first fifteen (15) feet of a thirty (30) foot no build zone. Any
second story, floor, or portion of the building taller than fifteen (15)
feet shall be setback an additional (10) feet or forty (40) feet from the
property line. Any terrace, balcony or other similar feature shall face
east, south or west but not north towards the Kampong lot line.
Height limit is 25 feet.
4,1. Lot 8 Restrictions: a fifteen (15) foot landscape buffer comprising
the first fifteen (15) feet of a thirty (30) foot setback. Any second
story, floor, or portion of the building taller than fifteen (15) feet shall
be setback an additional (10) feet or forty (40) feet from the property
line. Height limit is 25 feet. Any terrace, balcony or other similar
feature shall face east, south or west but not north towards the
Kampong lot line. Height limit is 25 feet.
4.1.9 Lot 9 Restrictions: a fifteen (15) foot landscape buffer comprising
the first fifteen (15) feet of a thirty (30) foot setback. Any second
story, floor, or portion of the building taller than fifteen (15) feet shall
be setback an additional (10) feet or forty (40) feet from the property
line. Height limit is 25 feet. Any terrace, balcony or other similar
feature shall face east, south, or west but not north towards the
Kampong lot line. Height limit is 25 feet.
4.1.10Lot 10 Restrictions: a ten (10) foot landscape buffer comprising the
first ten (10) feet of a twenty (20) foot setback. The landscape buffer
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may terminate approximately twenty (20) feet west of the boat slips as
shown on the site plans submitted with the applications at issue in this
dispute. The purpose of this relaxation is to allow boat access to the
existing slips. Any second story, floor, or portion of the building shall
be setback an additional (10) feet or thirty (30) feet from the property
line. Height limit is 25 feet.
4.1 1 Lot 11 Restrictions: No restrictions provided, however, that if Lots
10 and 11 are subsequently combined, the new -consolidated lot would
have the following restrictions: a fifteen (15) foot landscape buffer
comprising the first fifteen (15) feet of a forty (40) foot setback.
Height limit 25 feet.
5.0 GOVERNING DOCUMENTS, DESIGN GUIDELINES,
LIGHTING STANDARDS
5.1 Developer agrees that the restrictions set forth above shall be
incorporated into the governing documents that control and bind the
development of the Subject Property.
5.2 Developer and Kampong agree to incorporate lighting standards into
the governing documents, design guidelines and any lighting
programs with the intent to be consistent with the standards and
practices of the International Dark -Sky Association, as it may be
commercially practicable. It is the intent of this paragraph, and these
restrictions, to guard against fugitive light and to promote, to the
maximum advantage of both properties, a dark sky at night without
either property causing any unnecessary light pollution to the
detriment of the other.
6.0 WAIVER, ACKNOWLEDGMENT, AND SUPPORT FOR
KAMPONG
6, I The Developer, its successors and assigns hereby acknowledges and
waives on its own behalf and on behalf of all subsequent owners and
occupants that the Kampong operates as a center for research,
education, and assembly and that non-residential uses frequently
occur thereon including the hosting of events and fundraisers
consistent with the mission and purposes of promoting the Kampong
and the study, promotion, and preservation of plants. The Developer
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hereby acknowledges these uses and waives any objection to these
uses. Developer agrees to include in the governing documents for the
Subject Property, including association documents, a notice and
disclaimer in conspicuous type in substantially the following form:
"YOU HEREBY ACKNOWLEDGE THAT YOUR PROPERTY IS
ADJACENT TO THE KAMPONG WHICH OPERATES AS A
NON-RESIDENTIAL USE, WHICH HOSTS MEETINGS,
GATHERINGS, ASSEMBLIES, AND SYMPOSIA, RESEARCH
CONFERENCES, AND STUDENTS AND WHICH ENGAGES
FROM TIME TO TIME IN FUNDRAISING ACTIVITES
CONSISTENT WITH ITS PURPOSE."
7.0 MISCELLANEOUS
7.1 Further Assurances. The parties hereby agree to do all acts and things
reasonably necessary from time to time, whether prior to, on and after
the execution of this agreement, to effectuate the terms of the
Agreement, to more effectively and completely carry out the
intentions and purposes of the Agreement without further
consideration. Such acts and things include, but are not limited to
taking all reasonably required action necessary to execute and deliver
such further and other documents, certificates, amendments, and other
written instruments which may be reasonably necessary to effectuate
the intent and purpose hereof and to carry out all transactions
contemplated by the Agreement.
7.2 Cooperation, consents, approvals. The parties shall cooperate fully
with each other and with their respective counsel and accountants in
connection with any actions reasonably necessary to be taken as part
of their respective obligations in connection with the Transaction. In
any instance under the terms of this Agreement in which the consent
or approval of a party hereto to any proposed action is required, such
consent or approval shall be requested in writing and shall not be
unreasonably withheld or delayed unless otherwise set forth herein.
Consent or approval shall be given in writing by the party from which
a consent or approval is requested within ten (10) days after the giving
of the notice from the requesting party. Failure to object in writing
within such time frame shall be deemed to constitute consent or
approval to the proposed action.
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7.3 Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective administrators,
executors, legal representatives, heirs, successors and permitted
assigns, whether so expressed or not.
7.4 Indulgences not Waivers. No indulgences extended by any party
hereto to any other party shall be construed as a waiver of any breach
on the part of such other party, nor shall any waiver of one breach be
construed as a waiver of any rights or remedies with respect to any
subsequent breach.
7.5 Term. The restrictions set forth herein shall run with the land and shall
be binding on all persons claiming under it for a period of thirty (30)
years from the date of this Agreement, after which time it shall be
extended automatically for successive periods of twenty (20) years
each, unless an instrument signed by the Kampong has been recorded
agreeing to change these restrictions in whole or in part.
7.6 Amendments. The provisions of this Agreement may not be
amended, supplemented, waived or changed, other than by a writing
signed by the party against whom enforcement of any such
amendment, supplement, waiver or change is sought and making
specific reference to this Agreement.
7.7 Arm's Length Negotiations. Each party represents and warrants that
(a) before executing this Agreement, it has fully informed itself of the
terms, contents, conditions and effects of this Agreement; (b) it has
relied solely and completely upon its own judgment, and the advice of
its own counsel, in executing this Agreement; (c) it has had the
opportunity to seek, and has obtained, the advice of legal and other
counsel before executing this Agreement; (d) it has acted voluntarily
and of its own free will in executing this Agreement; (e) it is not
acting under duress, whether economic or physical, in executing this
Agreement; and (f) this Agreement is the result of arm's length
negotiations conducted by and among the parties and their respective
counsel.
7.8 Construction. The language used in this Agreement will be deemed to
be the language chosen by all of the parties to express their mutual
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to or
intent, and no rule of strict construction shall be applied against any
party. Any reference to any federal, state, local, or foreign statute or
law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The
parties intend that each representation, warranty and covenant
contained herein shall have independent significance. If any party has
breached any representation, warranty, or covenant contained herein
in any respect, then the fact that there exists another representation,
warranty, or covenant relating to the same subject matter (regardless
of the relative levels of specificity) which the party has not breached
shall not detract from or mitigate the fact that the party is in breach of
the first representation, warranty or covenant.
7.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
Confirmation of execution by electronic transmission of a facsimile
signature page shall be binding upon any party so confirming.
7.10 Equitable Remedies. Each party acknowledges that in the event of a
breach of any of its obligations hereunder, the other parties' damages
will be substantial and difficult, if not impossible to ascertain, that the
other parties will be irreparably harmed and that money damages
would be an inadequate remedy for any breach or threatened breach of
this Agreement by such Party. Accordingly, in the event of a breach
or threatened breach by any party of any provision of this Agreement,
the other party shall be entitled, upon application to any court of
competent jurisdiction, to both temporary and permanent injunctive
relief to restrain such breach, which shall be in addition to all other
rights and remedies to which the party is entitled. The parties likewise
acknowledge the appropriateness of specific performance as a remedy
for the breach due to the unique nature of this Agreement.
7.1 I Force Majeure. In the event that either party hereto is prevented from
fully and timely performing any of its obligations hereunder due to
acts of God, strikes and/or lock -outs, other industrial disturbances,
acts of the public enemy, laws, rules and regulations of governmental
authorities, wars or warlike action (whether actual, impending or
expected, and whether de jure or de facto), arrest or other restraint of
government (civil or military), blockades, insurrections, acts of
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terrorists or vandals, riots, epidemics, landslides, sinkholes, lightning,
hurricanes, storms, floods, washouts, fire or other casualty,
condemnation, earthquake, civil commotion, explosion, breakage or
accident to equipment or machinery, any interruption of utilities,
confiscation or seizure by any government or public authority, nuclear
reaction or radiation, radioactive contamination, accident, repairs or
other matter or condition beyond the reasonable control of either party
(collectively called "Force Majeure", financial inability to perform
hereby expressly excluded) such party shall be relieved of the duty to
perform such obligation until such time as the Force Majeure has been
alleviated; provided, that upon the removal of the Force Majeure, the
obligation prevented from being fulfilled will be automatically
reinstated without the necessity of any notice whatsoever.
7.12 Headings. The headings contained in this Agreement are for
convenience of reference only, are not to be considered a part of the
Agreement and shall not limit or otherwise affect in any way the
meaning or interpretation of this Agreement.
7.13 Notices. All notices, requests, consents and other communications
required or permitted under this Agreement shall be in writing
(including electronic transmission) and shall be (as elected by the
persongiving such notice) hand delivered by messenger or courier
service (including overnight mail service), electronically transmitted,
or mailed (airmail if international) by registered or certified mail
(postage prepaid), return receipt requested, addressed to:
Suzanne Perez
Vice President
EFC Holdings, Inc.
5960 S.W. 57 Avenue
Miami, FL 33143
305-455-3360
Facsimile: 305-860-9401
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With a copy to:
Cristina Pocaterra
Director of Operations
EFC Holdings, Inc.
5960 S.W. 57 Avenue
Miami, FL 33143
305-455-3354
Facsimile: 305-860-9401
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Mr. David Lee
Director of The Kampong
The Kampong
4013 Douglas Road
Coconut Grove, FL 33133
305-442-7169
Facsimile: 305-442-2925
With a copy to:
Mr. Charles R. Wichman, Jr.
CEO and Director
National Tropical Botanical Garden
3539 Papalina Road
Kalaheo, Kauai, Hawaii 96741
Additional Copy to:
Jeffrey S. Bass, Esq.
Shubin & Bass, P.A.
46 S.W. 1 Street 3rd Floor
Miami, FL 33130
305-381-6060
Facsimile: 305-381-9457
or to such other address as any party may designate by notice
complying with the terms of this Section. Each such notice shall be
deemed delivered (a) on the date delivered, if by personal delivery or
courier; (b) on the date of transmission with confirmation of receipt, if
by electronic transmission; and (c) on the date three (3) business days
following the deposit of the notice in a U.S. Mail depository (or, if
applicable, in an appropriate airmail deposition), properly addressed
and with necessary postage.
7.14 Relationship of the Parties. The parties hereto acknowledge that they
are separate and independent entities and nothing contained herein
shall be deemed to create a joint venture, association, partnership,
agency or employment relationship between the two. Neither party
shall have the power to act in the name of, on behalf of, or incur
obligations binding upon the other party. Neither party shall acquire
an interest in the business or operations of the other by virtue of this
Agreement. Furthermore, neither party endorses or warrants the
activities of the other or their business, business practices, projects,
products, services or other activities.
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7.15 Severability. In case any one or more of the provisions contained in
this Agreement or any application thereof shall be deemed invalid,
illegal or unenforceable in any respect, such affected provisions shall
be construed and deemed rewritten so as to be enforceable to the
maximum extent permitted by law, thereby implementing to the
maximum extent possible, the intent of the parties hereto, and the
validity, legality and enforceability of the remaining provisions
contained in this Agreement shall not in any way be affected or
impaired thereby.
7.16 Survival. All covenants, agreements, representations and warranties
made herein or otherwise made in writing by any party pursuant
hereto shall survive the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby.
7.17 Waivers. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement shall
not affect the right of such party to require performance of that
provision or any other provision hereunder. Any waiver by any party
of any breach of any provision of this Agreement should not be
construed as a waiver of any continuing or succeeding breach of such
provision, a waiver of the provision itself or a waiver of any other
right or remedy under this Agreement. Notice to or demand on any
party in any circumstance shall not, of itself, constitute any other or
further notice or demand in similar or other circumstances.
7.18 Attorney's Fees. Each party shall bear their own attorney's fees and
costs in connection with this Agreement. In any action, however, to
enforce its terms the prevailing party shall be entitled to the recovery
of its attorney's fees and costs, including appellate fees and costs.
[SIGNATURE PAGES TO FOLLOW]
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Witness:
Print N
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Print Nam?
National Tropic I Botanical Garden
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Date:
7
,
By:
STATE OF FLORIDA
) ss:
COUNTY OF MIAMI-DADE )
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Charles 'R.""Wieun an,
CEO and Director, 1--
National Tropical Botanical Garden
The foregoing instrument was acknowledged before me this 20V day
of April, 2008, by Chipper Wichman who produced Ow* f
as identification and who represented that he is the CEO and Director,
National Tropical Botanic& Garden, and is duly authorized to execute this
Settlement Agreement.
Into th
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NOTARY 4 UBLIC
State of Florida at Large
Print Name: '.777‘,z, A '5 A
My Commission Expires:
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COMMVSSION 4 00 TPVXM
EXPRES: Febmary 8, 2009
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Witness:
Print •.itte:,„'
By:
Suzanne 6rez,
Vice President,
Print Name: EFC HOLDINGS, INC.
.,-••-••••
STATE OF FLORIDA
) ss:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this / day
of April, 2008, by Suzanne Perez who produced
as identification and who represented that she is the Vice President of EFC
Holdings, Inc., and is duly authorized to execute this Settlement Agreement.
SubmitJed
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NOTARY, U
TCASION AWNS
MY COMMSSION OD 394009
S tatv—T Florida at
Print Name:
Lame
*' EXPIRES: February 8, 2009
Thiu Notary Public Underwriters
My Commission Expires: Jr/
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