2005-061
RESOLUTION NO. 2005-61
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
A VENTURA, FLORIDA, APPROVING SETTLEMENT AGREEMENT
BETWEEN A VENTURA-ENSENADA, INC. AND A VENTURA LAND
AND DEVELOPMENT CORPORATION AND THE CITY OF
AVENTURA, CONCERNING .51 ACRE PARCEL OF LAND LOCATED
ON NORTHEAST 34TH AVENUE AT NORTH COUNTRY CLUB DRIVE
AND TWO (2) PARCELS OF SUBMERGED LAND CONSISTING OF
5.39 ACRES LOCATED SOUTH OF NORTHEAST 207TH STREET AND
EAST OF NORTHEAST 34TH A VENUE; AUTHORIZING EXECUTION
OF SETTLEMENT AGREEMENT; AUTHORIZING
IMPLEMENTATION OF SETTLEMENT AGREEMENT; PROVIDING
FOR EFFECTIVE DATE.
WHEREAS, the City Commission of the City of Aventura, upon the recommendation
of the City Manager and City Attorney, finds that approval of the Settlement Agreement (the
"Agreement") between Aventura-Ensenada, Inc. ("AEI"), Aventura Land and Development
Corporation ("ALDC") and the City of Aventura (the "City") is in the best interest of the City.
NOW, THEREFORE, IT IS HEREBY RESOLVED BY THE CITY COMMISSION OF
THE CITY OF A VENTURA, FLORIDA, AS FOLLOWS:
Section 1. Recital. That the above stated recital is hereby confirmed and adopted.
Section 2. Aereement Approved. That the Agreement, in substantially the form
attached hereto, between AEI and ALDC and the City, is hereby approved, and the City
Manager is hereby authorized to execute the Agreement on behalf of the City, once approved
by the City Attorney as to form and legal sufficiency.
Section 3. Implementation. That the City Manager and City Attorney are
hereby authorized to take any and all actions which are necessary to fully implement and
effectuate this Resolution and the Agreement.
Section 4. Effective Date. That this Resolution shall become effective immediately
upon adoption hereof.
The foregoing Resolution was offered by Vice Mayor Joel, who moved its adoption. The
motion was seconded by Commissioner Diamond, and upon being put to a vote, the vote was as
follows:
Commissioner Zev Auerbach
Commissioner Bob Diamond
Commissioner Harry Ho\zberg
Commissioner Michael Stern
Commissioner Luz Urbilez Weinberg
Vice Mayor Billy Joel
Mayor Susan Gottlieb
yes
yes
yes
yes
yes
yes
yes
Ordinance No. 2005-61
Page 2
PASSED AND ADOPTED this 11th day of October, 2005.
Attest:
,II
/:../
Approved as to Form and Legal Sufficiency:
M~~
City Attorney
&u-zux-
3
SETTLEMENT AGREEMENT
Aventura-Ensenada, Inc. ("AEI"), Aventura Land and Development Corporation
("ALDC"), and the City of Aventura, Florida, ("CITY"), enter into this Settlement Agreement
("Agreement"), effective as of October I, 2005, as follows:
REelT ALS
(A) AEI is a corporation duly organized under the laws of the State of Florida.
(B) ALDC is a corporation duly organized under the laws of the State of Florida.
(C) CITY is a duly organized Florida municipal corporation.
(D) AEI is the current fee simple owner of title in and to the .5 I-acre :!: parcel located
at the northeastern corner of the intersection ofN. Country Club Drive, and N. E. 34th Avenue, in
the City of Aventura, Florida, which parcel has been commonly referred to as "George Berlin
Park" for some time and is described on Exhibit "I" which is attached hereto and by this
reference is made a part hereof (hereinafter the "Upland Parcel");
(E) ALDC is the current fee simple owner oftitle in and to a SA-acre:!: parcel situated
within the east-west canal located in close proximity to the north and east of the Upland Parcel,
which parcel is described as Exhibit "2" which is attached hereto and by this reference is made a
part hereof, (hereinafter the "Canal Parcel");
(F) The CITY is a Florida municipal corporation having jurisdiction over lands within
northeastern Miami-Dade County, Florida, including the Upland Parcel and the Canal Parcel.
(G) From the time AEI purchased the Upland Parcel, until July 13, 1999, the Upland
Parcel was subject to zoning regulations promulgated by Miami-Dade County, Florida (flkla
Dade County, Florida) under the County's zoning code (the "County Code"). From the time of
the incorporation and creation of the City on November 7, 1995, the CITY applied and utilized
the previously existing County Code Zoning District Regulations until July 13, 1999. From its
acquisition by AEI until July 13, 1999, the Upland Parcel was zoned for multifamily residential
and hotel uses under the County's "RU-4A" zoning classification, and was designated under the
County's Comprehensive Plan for medium high density residential uses.
(H) On July 13, 1999, the CITY through its CITY Commission adopted Ordinances
99-09 and 99-10, which together operated on their face to supplant the County Code with a
zoning code (Ordinance 99-09) and a zoning map (Ordinance 99-10) promulgated by the CITY
(the "CITY Code"). Upon its adoption of the CITY Code, and pursuant to its zoning map, the
CITY inter alia altered the zoning governing the Upland Parcel by changing the Upland Parcel's
zoning classification from the County's "RU-4A" zoning district (multifamily residential and
hotel uses; medium high density residential uses) to the CITY's "Community Facilities Zoning
District" [currently set forth in Section 31-147 of the CITY Code]. Pursuant to the future land
use element of the Comprehensive Plan of the CITY, the Upland Parcel is depicted as "medium-
high density residential" in the future land use map.
(I) Under the CITY's zoning code and zoning map as enacted in July 1999 and to
date, ALDC's Canal Parcel has been classified within the CITY's "RMF4 Zoning District"
[currently set forth in Section 31-143(f) of the CITY Code]. Pursuant to the future land use
element of the Comprehensive Plan of the CITY, the Canal Parcel is depicted as "water" in the
future land use map.
(J) In June 2003, AEI commenced a civil action in Miami-Dade County Circuit
Court, styled Aventura-Ensenada. Inc. vs. CITY of Aventura. Florida. Case No. Case No. 03-
14305 CA 27 (the "AEI Litigation"), seeking to invalidate the CITY's Ordinances 99-09 and 99-
I 0, at least to the extent those Ordinances affected the Upland Parcel or, alternatively, seeking
2
damages against the CITY through an inverse condemnation claim, most recently through its
Amended and Supplemental Complaint.
(K) The CITY responded to AEI's Amended and Supplemental Complaint by denying
certain allegations and asserting certain affirmative defenses.
(L) AEI and the CITY have conducted significant discovery in this proceeding,
including the exchange of documentation and/or information concerning the allegations
contained in the Amended and Supplemental Complaint, and the defenses thereto asserted by the
CITY. AEI and the CITY believe that continued litigation, in all likelihood, would be highly
contested, fact-intensive, and costly.
(M) In an effort to reach an amicable resolution of the AEI Litigation, AEI and the
CITY participated in a lengthy mediation conference and, after good faith, arm's length
negotiations, and without collusion, AEI and the CITY agreed to resolve the claims raised in the
AEI Litigation and to permit private development on the Upland Parcel on the terms and
conditions set forth in this Agreement.
(N) The CITY has also negotiated an agreement with ALDC concerning the nature
and extent of private development ofthe Canal Parcel.
(0) The signatories to this Agreement represent and warrant to each other that they
have the full power and authority of their principals to execute and to perform their respective
obligations under this Agreement and, where appropriate, have obtained the requisite corporate
authority to enter into this Agreement.
NOW, WHEREFORE, premises considered, it is hereby stipulated, consented to and
agreed, by and between AEI and the CITY, and by and between ALDC and the CITY, and by
and between AEI and ALDC, as follows:
3
AGREEMENT AS TO UPLAND PARCEL (AEI AND CITY)
1. The CITY agrees to allow the necessary relocation by AEI, within the relocation
area depicted on Exhibit "3" which is attached hereto and by this reference is made a part hereof,
of the drainage easement affecting the subject Upland Parcel, at AEI's sole cost and expense, and
the reduction of the easement width from 20 feet to 15 feet.
2. At the request and initiative of AEI, the CITY staff will act as Applicant, and
provide a positive staffrecommendation, for the rezoning of the Upland Parcel from the CITY's
Community Facilities Zoning District to the CITY's Single-Family Residential District (RS2)
designation, in order to permit the private construction and development of five single-family
dwelling units (with 2 entrance doors to each of the single family units), subject to RS2 Zoning
site criteria. Although CITY shall act as the Applicant, all costs and expenses of the rezoning
shall be paid for by AEI. This includes all costs of the provision of public notice through
publication, mailings and posting at the premises. This cost responsibility of AEI also includes
all impact fees and additional school impact mitigation fees, if any, required by the Miami-Dade
County School Board for the five (5) single family units.
3. A. Upon the CITY Commission approval of the above-described rezoning,
AEI and the CITY do not anticipate that any variances, special exceptions or related land use
approvals shall be required to permit the design and construction of these five (5) dwelling units
on the Upland Parcel other than as specified in this Agreement. The CITY does not know of
any impediment to the permitting and construction anticipated herein; however, if AEI or the
CITY discovers that any impediments do exist, that party shall notify the other promptly and
shall cooperate fully in removing the impediment to allow the agreed-upon construction subject
to the requirements and procedures of applicable law.
4
B. The parties recognIze that the consideration of the rezomng from
Community Facilities Zoning District to RS2 Zoning District constitutes a quasi-judicial decision
of the CITY Commission, and that accordingly, the CITY Commission does not hereby commit
itself to approve or grant the rezoning, but instead simply agrees to process and consider said
rezoning in accordance with the applicable requirements of law as provided by the CITY Code
criteria pertaining to the grant or denial of rezoning applications. The decision to grant or deny
the rezoning shall be based solely upon the substantial competent evidence presented during the
course of the quasi-judicial proceedings in accordance with Section 34-31 ofthe CITY Code.
4. Site plan issues and other CITY approvals relating to the Upland Parcel shall, in
all instances, be advanced by the CITY such that the end result, acquisition of building permits,
shall not be delayed, subject to the applicable zoning and Building Code provisions and in
accordance with law. CITY commits itself to expeditiously process and consider any necessary
CITY approvals, in accordance with law.
5. Upon final approval by the CITY of the rezoning of the Upland Parcel from the
CITY's Community Facilities Zoning District to its RS2 designation as proposed hereunder, and
following the expiration of the time for an appeal from that rezoning by any interested party (or,
if an appeal or other contest is pursued, upon the final disposition thereof), the parties shall file a
Stipulation of Dismissal of the AEI Litigation which shall provide that the AEI Litigation is
dismissed with prejudice, that the Court is requested to retain jurisdiction to enforce this
Agreement, and that each party shall bear its own attorneys' fees and costs. In addition, and in
that event, AEI shall also dismiss with prejudice its Petition for Writ of Certiorari pending in the
Miami-Dade Circuit Court, Appellate Division, styled Aventura-Ensenada, Inc. v. CITY of
5
Aventura, Florida, Case No, 04-280 AP. Upon such dismissal, each party shall bear its own
attorney's fees and costs.
6. In consideration for the agreements made by AEI within this Agreement, the
CITY further covenants and agrees, except as described below, to waive any rights to institute
eminent domain proceedings concerning the Upland Parcel or to take any action that would limit,
impair, obstruct or prevent the private development of the Upland Parcel which is expressly
contemplated by AEI and the CITY under this Agreement. Without limiting the effect of this
paragraph, the CITY expressly represents and covenants that the CITY shall not seek to acquire
the Upland Parcel through eminent domain proceedings if and when the Upland Parcel is
rezoned to the CITY's RS2 designation. However, these restrictions upon acquisition or the
exercise of the power of eminent domain shall not be construed to prevent the future acquisition
of the Upland Parcel or the utilization of the power of eminent domain, in the event that future
circumstances indicate that in order to protect the public health, safety or welfare, it is necessary
to utilize the power of eminent domain so as to acquire a portion or whole of the Upland Parcel,
under the same circumstances in which the CITY may utilize the power of eminent domain to
acquire privately owned property within any portion of the CITY in the exercise of its lawful
authority. Further, this paragraph (6) shall not, in any way, preclude the CITY from utilizing the
power of eminent domain to acquire a public utility easement in a portion of the Upland Parcel,
so long as such easement does not prevent the development and occupancy of the five (5) single
family dwelling units which are envisioned.
7. In the event, and for whatever reason, AEI is not permitted by any governing
authority (including the CITY) to construct the five (5) dwelling units as provided under this
Agreement, and/or if the CITY elects prior to the construction of the five (5) single family homes
6
to rezone the Upland Parcel from RS2 to any other zoning classification that further limits or
prevents private development on the Upland Parcel, this Agreement as it relates to the Upland
Parcel shall be rendered null, void and of no further force and effect, and AEI and the CITY (and
the Upland Parcel) shall all revert to their rights and status that existed as of the Effective Date of
this Agreement, without limitation. In that event, AEI and the CITY shall be permitted to pursue
any rights and remedies they possessed as of the Effective Date of this Agreement without
limitation. Furthermore, and in that event, neither AEI nor the CITY shall interpose any
objection or defense to the other's pursuit of rights or remedies based on the running of any
statutes oflimitation or repose, or any other legal or equitable principles, based on the passage of
time since the Effective Date of this Agreement. For a period of two (2) years after the
execution of this Agreement, the CITY covenants and agrees, to the fullest extent authorized by
law, that no governmental actions taken by the CITY (whether legislative or administrative) shall
have any limiting effect whatsoever on the rights and benefits of AEI or the Upland Parcel as
preserved under this Agreement to build and sell five (5) single family dwelling units, subject to
the requirements of the CITY code.
AGREEMENT AS TO CANAL PARCEL (ALDC and CITY)
8. A. The CITY staff shall support ALDC's application to governing authorities
(e.g., Miami-Dade County DERM and/or Army Corps of Engineers) to construct five (5) boat
slips and associated docks (the "Five Slips") in or on the Canal Parcel owned by ALDC
consistent with the terms, conditions and provisions of applicable rules and regulations of
Miami-Dade County/DERM and/or other governmental agencies having jurisdiction over such
construction. ALDC hereby reserves the right to construct additional boat slips and docks (the
"Other Slips") in or on the Canal Parcel, beyond the Five Slips, in accordance with the City
7
Code, Building Code and other regulatory agency approvals for the purpose of serving as
accessory uses to residences located to the north or south of the Canal Parcel. Except for the
Five Slips and the Other Slips, AEI and ALDC and their principals agree that they shall not seek
to develop or build any other structures on the Canal Parcel or on any other portion of the canal
with adjoins or connects to the Canal Parcel. Further, upon construction of the Five Slips as
provided under this Agreement, and in strict reliance upon the CITY's representations and
covenants set forth in this Agreement, ALDC agrees for itself, its successors and assigns, to
waive and abandon any other land development rights for construction of any structure (except
for the Other Slips) in or on the Canal Parcel. Further, AEI and ALDC agree that the Five Slips,
shall be used exclusively, as accessory uses, by the owners of the five (5) single family dwelling
units which are to be developed on the Upland Parcel pursuant to this Agreement, and CITY
shall require that a unity of title be executed and recorded so as to tie each of the Five Slips to a
specific single family home in order to facilitate CITY's enforcement of this restriction.
B. As to the Five Slips, the CITY agrees to be a co-applicant with ALDC to the
extent required by any governmental authorities including Miami-Dade County DERM. In
consideration for the CITY executing a Class I DERM Permit Application for the Five Slips in
CITY's capacity as an upland property owner, ALDC and AEI hereby agree that they and their
successors and assigns shall defend, indemnify and hold harmless the CITY and CITY's
officers, agents and employees from any demand, claim, damage, liability, cost or expense
(including attorneys fees and costs in any administrative or court proceedings) which demand,
claim, damage, liability, cost or expense in any way arise out of the DERM Permit or out of the
improvement or use of the canal to which the DERM Permit pertains, regardless of CITY's
negligence or of the negligence of CITY's officers, agents and employees. This covenant shall
8
be supported by comprehensive general liability insurance coverage obtained and consistently
maintained by ALDC and AEI , at their sole cost and expense, and shall be in a minimum
amount of One Million Dollars, combined single limit coverage, for personal injury, including
death, and property damage liability, in a form ,substance and sufficiency of insurer which is
approved by CITY's risk management division. Proof of the required insurance shall be
provided to CITY at all times by ALDC and AEI filing a Certificate of Insurance with the
CITY's risk management division as may be reasonably requested by the CITY. The CITY and
CITY's officers, agents and employees shall be named as additional insured. In the event that
CITY is requested by ALDC to execute a Class I DERM permit for the Other Slips in the
Canal Parcel, CITY may likewise first require indemnification and insurance as is
required above.
C. The provisions of this section 8 (A-D, inclusive) shall be further implemented by
the execution and recordation of a Declaration of Restrictive Covenants ( the "Declaration") by
ALDC and AEI as owners of the Upland Property and Canal Parcel (the "Property"), which
instrument shall run with the Property and shall bind ALDC and AEI, their successors and
assigns and any subsequent owners of the Property, to comply with this section, so that the
interests of the CITY are protected. The Declaration shall be in a form and substance which is
approved by the CITY Attorney.
D. In the event the Five Slips and/or the Other Slips are constructed in or on the
Canal Parcel along N.E. 207th Street, the CITY agrees to expeditiously process and consider
ALDC's permit application for access across the right-of-way between N.E. 207th Street and the
Canal Parcel, including curb-cuts along the southern edge of N.E. 207th Street to provide access
for the disabled to the boat slips and associated docks (the costs of any striping or curb-cuts shall
9
be borne by ALDC). Access to the Canal Parcel over or through N.E. 207th Street shall be
subject to application for and approval of a public works permit from the CITY's Community
Services Department. This application for a public works permit must include civil engineering
plans to show any improvements or construction that are proposed to be located in the CITY
right-of-way. The application shall be subject to approval of the CITY Engineer, and the CITY
Engineer may attach such conditions which he finds warranted to assure that approval of the
public works permit will be in the public interest and in accordance with the CITY Code.
9. A. Prior to the construction of the Five Slips as provided under this Agreement, at
the request and initiative of ALDC, the CITY staff shall act as Applicant, and provide a positive
staff recommendation to the CITY Commission, for the rezoning of the Canal Parcel from the
CITY's RMF4 zoning classification to its CNS zoning classification. The parties recognize that
the consideration ofthe rezoning from RMF4 to CNS Zoning District constitutes a quasi-judicial
decision of the CITY Commission, and that accordingly, the CITY Commission does not hereby
commit itself to approve or grant the rezoning, but instead simply agrees to process and consider
said rezoning in accordance with the applicable requirements of law as provided by the CITY
Code criteria pertaining to the grant or denial of rezoning applications. The decision to grant or
deny the rezoning shall be based solely upon the substantial competent evidence presented
during the course of the quasi-judicial proceedings in accordance with Section 34-31 of the
CITY Code. All costs of the processing of the application and which result from the
implementation of the application, shall be borne by ALDC, not the CITY.
B. As to the rezoning for the Canal Parcel, the City staff shall recommend to the City
Commission that the rezoning ordinance shall provide that the rezoning shall not be effective
unless and until the owner of the Canal Parcel receives the required DERM Permit for the Five
10
Slips. In the event that the City Commission adopts the rezoning but does not include the above
stated condition precedent on the effectiveness of the rezoning, ALDC may elect to immediately
opt out of this Settlement Agreement or to require the City staff to withdraw the rezoning
application prior to final City Commission action thereon.
C. Further, ALDC recognizes that the rezoning application for the Canal Parcel shall
be withdrawn, as moot, in the event that the rezoning for the Upland Parcel is denied.
10. A. In the event, and for whatever reason, except as specified below, ALDC is not
permitted by any governing authority (including the CITY) to construct the Five Slips as
provided under this Agreement, this Agreement as it relates to the Canal Parcel shall be rendered
null, void and of no further force and effect, and ALDC and the CITY (and the Canal Parcel)
shall all revert to their rights and status that existed as of the Effective Date of this Agreement,
without limitation. In that event, ALDC and the CITY shall be permitted to pursue any rights and
remedies they possessed as of the Effective Date of this Agreement without limitation.
Furthermore, and in that event, neither ALDC nor the CITY shall interpose any objection or
defense to the other's pursuit of rights or remedies based on the running of any statutes of
limitation or repose, or any other legal or equitable principles, based solely on the passage of
time since the Effective Date of this Agreement.
B. However, in the event that ALDC is not permitted by any governing authority to
construct the Five Slips as provided under this Agreement because of a failure of ALDC to
diligently pursue its application for such approval or to comply with the conditions of such
approval, the provisions of this Agreement by which ALDC agrees not to attempt to make any
development of the Canal Parcel, other than the establishment of Five Slips and/or the Other
Slips, shall continue to be in full force and effect so long as CITY has abided by its obligation
11
under this Agreement concerning the Canal Parcel. ALDC agrees to make application to DERM
regarding the Five Slips within ninety (90) days of issuance of a certificate of occupancy for any
of the five (5) residences on the Upland Parcel.
C. For a period of two (2) years following the execution of this Agreement, the
CITY covenants and agrees to the fullest extent authorized by law that no governmental actions
taken by the CITY shall have any limiting effect whatsoever on the rights and benefits of ALDC
or the Canal Parcel as preserved under this Agreement to build Five Slips for the purpose of
serving the five (5) single family dwelling units to be constructed on the Upland Parcel.
However, this shall not preclude the CITY from amending the CITY Comprehensive Plan to
clarify that parcels within the CITY which are designated as "water" within the future land use
element of the Comprehensive Plan are not amenable to development activities other than the
type of boat slips and dock development activities which are authorized herein and the CNS
Zone compatible uses. Further, CITY commits itself to expeditiously process and consider any
other necessary CITY approvals for the Five Slips in accordance with law.
GENERAL PROVISIONS
11. All rules and regulations governing the confidentiality of this document and the
final resolution of this controversy shall be governed by, and be protected by, Florida law as the
same pertains to mediation obligations imposed on all parties. No evidence of the actions
proposed herein, including any presentations in any public forum related to the approval and
implementation ofthese terms and conditions, shall be admissible by either party on the merits of
the claims in the AEI Litigation or regarding any other rights or remedies secured or preserved
under this Agreement. However, this shall not prevent or preclude any of the parties herein from
utilizing evidence or presentations from the public hearings conducted on the rezonings
12
envisioned herein in defense of the decision made or actions taken upon said rezonings by the
CITY Commission.
12. This Agreement, and any of the specific items, covenants, and conditions
contained herein, may not be waived, changed, altered or modified except by an instrument in
writing signed by all the parties against whom enforcement of such change is sought. The CITY
Manager shall be authorized to act for the CITY in the implementation of this paragraph 12 upon
approval of the CITY Attorney as to the form and legal sufficiency of such action by the CITY
Manager.
13. The parties agree that this Agreement shall be rendered binding only upon
execution by all of the parties hereto, and following required approvals of the Agreement by the
CITY in accordance with applicable Florida laws and CITY Code provisions, and upon approval
by the Circuit Court. The parties agree that if the CITY or the Circuit Court does not approve this
Agreement, then it shall be of no further force or effect, and the parties hereto (and the Upland
Parcel and the Canal Parcel) shall retain their legal and equitable positions and status as if this
Agreement was never executed.
14. The "Effective Date" of this Agreement shall be October 1, 2005.
15. Wherever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Agreement, provided that the material purposes of this
Agreement can be determined and effectuated. This severability provision shall not operate to
13
ImpaIr, limit or affect any specific provisions of this Agreement that are expressly inter-
dependent.
16. The rights, benefits and detriments inuring to AEI and ALDC under this
Agreement shall be freely assignable at the sole election of AEI or ALDC, and shall run with the
Upland Parcel, and the Canal Parcel, respectively.
17. This Agreement shall in all respects be construed in accordance with the laws of
the State of Florida applicable to contracts made and to be performed wholly within the State of
Florida. Venue for any litigation hereunder shall be in the Circuit Court of the Eleventh Judicial
Circuit in and for Miami-Dade County, Florida.
18. This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same Agreement. Delivery
of an executed counterpart of a signature page to this Agreement by facsimile shall be effective
as delivery of a manually executed counterpart of this Agreement.
19. This Agreement shall be deemed to have been jointly drafted by the parties, and in
construing and interpreting this Agreement, no provision shall be construed and interpreted for or
against any of the parties because such provision or any other provision of the Agreement as a
whole is purportedly prepared or requested by such party.
20. In the event any party to this Agreement is required to take any action to enforce
the Agreement as against another party hereto, the prevailing party in any such litigation shall be
entitled to recover those reasonable professional fees and expenses incurred to enforce the
Agreement.
21. AEI and ALDC recognize that each of the rezoning applications described above
14
are being initiated at the request of AEI and ALDC, with the City acting as the applicant, on
behalf of AEI and ALDC, respectively, and that accordingly, AEI and ALDC hereby waive
written mailed notice of the rezonings pursuant to Section 166.041(3)(c)(I), Florida Statutes,
which would otherwise apply to CITY initiated rezonings of an aggregate of less than ten (10)
contiguous acres ofland.
22. In the event that the CITY Commission, in accordance with the CITY Code
criteria, grants the rezonings of the Upland Parcel and Canal Parcel which are described herein,
the parties hereto shall cooperate and work together to defend the action of the CITY
Commission in the event of any challenge by any other person, firm or entity. Further, in such
event, during the course of any such challenge to the CITY Commission decisions, AEI shall
take no action to further pursue the AEI litigation or the Petition for Writ of Certiorari identified
in paragraph (5) above, prior to the final adjudication of any such challenge, unless compelled to
do so by court order.
23. Upon the approval by the Circuit Court of this Agreement, the parties shall
exchange mutual releases waiving and relinquishing any and all causes of action or claims
between the parties which in any way arise out of or pertain to the zoning, land use or
development status of the Upland Parcel or the Canal Parcel, other than the right to enforce this
Agreement and to pursue any rights or remedies which are conditionally reserved by this
Agreement. The form of the mutual releases shall be subject to the review and approval of
counsel for the parties.
24. The Circuit Court shall be requested to retain jurisdiction to enforce the terms of this
Agreement in all respects.
STIPULATED AND AGREED BY:
IS
A VENTURA-ENSENADA, INC.,
a Florida corporation
CITY OF A VENTURA, FLORIDA,
a Florida municipal corporation
By:
Eric M. Soroka, City Manager
By:
Print:
Its:
Pursuant to Resolution No. 2005-_
A VENTURA LAND AND
DEVELOPMENT CORPORA nON,
a Florida corporation
Approved as to form and legal sufficiency:
By:
City Attorney
Print:
Its:
Approved as to form and legal sufficiency:
AEV ALDC Attorney
F:\300\328001\Aventura-Ensenada Settlement Agreement DMW Clean Version IO.lO.05.DOC
16
EXHIBIT "1" TO SETTLElVIENT AGREEMENT
MADE BETWEEN
A VENTURA-ENSENADA INC (AEI)
A VENTURA LAND AND DEVELOPMENT CORPORA nON (ALDC)
AND
CITY OF A VENTURA, FLORIDA
Legal Description of Land
A PARca Of" LAND DESCRIBED AS A PORllON Of" TRACT "F" Of" FlRST ADDmON BISCAYNE YACHT AND COUNTRY QUB, ACCORDING TO THE PLAT
THEREOf". AS RECORDED IN PlAT BOOK B9 AT PAGE 100 Of" THE PUBUC RECORDS OF DADE COUNTY (NOW MIAMI-DADE COUNTY), flORIDA, MORE
PARllCULARl Y DESCRIBED AS FOlLOWS:
COMMENCE AT THE "'EST J( CORNER Of" SECTION 35. TOWNSHIP 51 SOUTH, RANGE ~2 EAST CITY Of" AY<NTURA, MIAMI-DADE COUNTY, flORIDA;
THENCE SOX00'25"E FOR 1.60 FEET TO A POINT Of" CURVATURE OF A CIRCUlAR CURVE CONCAVE TO THE NORTHWEST: THENCE ALONG THE ARC OF
SAID CURVE. HAVING A RADIUS Of" 1091.35 FEET AND A CENTRAL ANGLE Of" lD'9'~" FOR 196.H FEET TO A POINT ON SAlD CURVE; THENCE
S61'~'~2"E ON A UNE RADIAL TO THE POINT ON CURVE FOR SO.OO FEET TO A POINT ON THE BOUNDARY Of" SAID TRACT "F;" THENCE S06'9'16'W
FOR 1.69 FEET TO THE POINT Of" BEGINNING Of" SAlD PARca Of" LAND: THENCE ALONG THE BOUNDARY Of" SAID TRACT "F" FOR THE FOlLO\\\NG
THREE (3) COURSES: (1) THENCE CONllNUE SOB'9'lS"W FOR 96.00 FEET TO A POINT Of" CURVATURE OF A CIRCULAR CURVE CONCAVE TO THE
NORTHEAST: (2) THENCE ALONG THE ARC Of" SAID CURVE. HAVING A RADIUS Of" 50.00 FEET AND A CENTRAL ANGLE Of" 90'00'00" FOR 76.M FEET
TO THE POINT Of" TANGENCY; (3) THENCE S61'~'~2"E FOR 106.00 FEET TO A POINT ON SAlD BOUNDARY OF TRACT "F:" THENCE N06'9'16"E FOR
1-46.00 FEET: THENCE N61'~'~2"W FOR 156.00 FEET TO THE POINT OF BEGINNING.
EXHIBIT "2" TO SETTLEMENT AGREEMENT
MADE BETWEEN
A VENTURA-ENSENADA INC (AEn
A VENTURA LAND AND DEVELOPMENT CORPORATION (ALDC)
AND
CITY OF A VENTURA, FLORIDA
Legal Description of Land
AU. 1HOSE LOTS, PECES OR PARCELS OF l-'NIl SllUAlE, L'YlNG AND BElNG IN SECllON 35, TOWNSHIP 51 SOUTH, RANGE 41 EAST, CITY OF AVENruRA
IIlAl.tI-DADE COUNTY, FUlRIOA. 1HE SAME BEING MORE PARllC\JLARL Y DESCRlIIED AS FOllOWS, VII.:
PARCEL "PRIVATE CANAL", lESS PORllONS L'YlNG IN "AVENlURA-MARlN" CONDOlllN1UM NO.1," "CCORDlNG TO THE DEClARAllON THEREOF, ,\NO
RECORDED IN OfRClAL RECORDS BOOK 8096 AT PAGE B76 OF "ARST ADDt110N 10 BISCA'INE YACHT ,\NO COUNlRV CUJB: ACCOROlNG 10 THE PUT
THEREOF, AS RECORDED IN PUT BOOK 89 AT PAGE 100 OF 1HE PUBUC RECORDS OF II1A111-0ADE COUNTY, FUlRIOA. 1.LSO, lESS 1HE PORllONS
LYING IN "AYENlURA FIRST ....,OIllON. ACCORDING TO THE PUT THEREOF, AS REODROED IN PUT BOOK 99 "T PAGE 11 OF THE PUBUC RECORDS OF
IIlAl.tI-DADE COUNTY, FLORID....
TOGETHER WITH:
"PRIVATE CAN"l" PORllON OF AVENlURA FIRST ADDIllON, ACCORD1NG 10 THE PUT THEREOF, AS RECORDED IN PUT BOOK 99 "T P"GE 11 OF THE
PUBUC RECORDS OF O....,E COUNTY (NOW II1A111-0""'E COUNTY), FLORID....
w
! ~
..
...
o
z
m
5 II
o
I ~
m
~
S!
! 8
, z
8
EXHIBIT "3" TO SETTLEMEN AGREEMEN
MADE BETWEEN
A VENTURA-ENSENADA INC (AEI)
A VENTURA LAND AND DEVELOPMENT CORPORA nON (ALDC)
AND CITY OF A VENTURA, FLORIDA
~
G:'::; ~{.f: rl \
'0'0)1 _ If \ rJ\ }
, I r;.':1"1{'
t..~'" I "','/',
---.;.,--==-_ 4 ......___ ........,,~
'----. =:t-'*=,,=-, ""--"'-- - ------- , /1
.=;~-~ i ./.-- ~ ~-1t:::~~~ ~~3C=~~~ ~;f~L
-;;.~ ~7Vt" j! . II, t_._~---- ..:t\#."L~C
1-', ,,,,
I ; ~ I: - ---------... '
r J S 'f
J I I ':
! ) Ii /t
I r!!i :f
IiI, If! ,1
f) I" :,'5
v Ie ::~
r IiI 'i
I IIi ,I
/' {'
: g ,Ir
: ~flJ
: I "I
I I II
I I"
, ,
, ,
, "
, ,"
, "
" ,
II I
" '
II /
" ,
" ,
.1 I
l': t
U J
fi'-------i
II j I
c: ,
'I I ,
,,' "
, I
:: I'
I '
, : I
" /'
I '
I' ,
. ~ I
I
/
i
,
j
I
I
i
i
,
;
,-----'11i
",I
11'
,
"
fll
,
-~ r, n ,7..'
,/ I' /I P Ir-::::=~
.....,...J' II " '1
--., ~~.J' I
{" lr -i,.:.r.::.J In-............,.
" " II '1
~ " II / ..
.' U IL-
. .. r--=-..,'
II II
II II
U "
. .
i
,
i
,
i
,
i
,
\ l~
i Ii
,
,
---
\
\
\
\
\:1
,I
,1\
,
i
\
\
\
,
'-Ii:
I'll
Ii
~
~I
~I
~I
~ I
~I
I
I
z
o
-i
."
o
:D
o
o
z
(Jl
;!
~
g
Z
I
,
I
,
i
I i
"'--;l.--""1
I
,
,
I
I
"RELOCATION AREA" SHOWN IN DARK OUTLINE
e
\
-L
, '.
'..... '-..----
I
I
II
:1
:1,' 0.
I:r._.-~
.- .--1
, -- --.--
..
r-'
...
.....
.' , \
\\-r-'~ ,-
I ~" If. \\ I
.. " ~ I', '
~ , II I .
\ . . I ~ I
, , , "1' .
__ I \I' ,I'
~ ' '1 \' I
ll. ~ ~ I \:
\ t ~ I \ 1
. III ,
11 ~ II: ~\'I
11 . II, II
l , ~ I q:
II II .1Ill!
II. "II ~
L.~ '\ :\
; 11 1\ .
\ \f i
. \ ~
. ..
~ \\.
. "
. "
II II'
11 11'
,
,
"
,
"
,
.
,
"
'" g
>
"
'" 8~
;;
'"
"
>
r;;
z
~
-<
8