SETTLEMENT STIPULATION AND AGREED ORDER

Transcription

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No.: CA AH SHERRY TEMPLE, vs. Plaintiff CITY OF RIVIERA BEACH, a Florida municipal corporation, Defendant. / SETTLEMENT STIPULATION AND AGREED ORDER This Settlement Agreement herinafter Settlement Stipulation is made and entered into this day of June, 2003, by and between Sherry Temple, Le1and Wesley Nichols, II and William Contole (hereinafter collectively referred to as Claimants ), Singer Island Oceanfront Hotel, LLC, a Florida limited liability company (hereinafter Oceanfront Hotel ) and The City of Riviera Beach, a municipal corporation existing under the laws of the State of Florida (hereinafter the City ) ( The Claimants, Oceanfront Hotel, and the City are collectively referred to hereinafter as the Parties ). WHEREAS, Oceanfront Hotel is the owner of certain real property located at 3800 North Ocean Drive, City of Riviera Beach, Florida, encompassing 6.6 acres (hereinafter the Property ); and WHEREAS, in August 2002, Oceanfront Hotel submitted a site plan application for approval of a 390 unit development under a proposed Resort Hotel Zoning District being considered by the City; and WHEREAS, on September 4,2002, pursuant to Ordinance No. 2922, the City adopted a new zoning district entitled Resort Hotel ( RH District ); and WHEREAS, on September 4, 2002, the City approved the Initial Site Plan for the Property pursuant to Resolution No (the resolution and plan being referred to collectively as the Initial Site Plan, contingent upon the City s adoption of Ordinance No 2927, assigning the RH District to the Property; and WHEREAS, on or about October 2,2002, the City, rezoned certain properties, including the Property to the newly created RH District pursuant to Ordinance No, 2927 ( RH Rezoning Ordinance ); and

2 WHEREAS, on or about November2002, Oceanfront Hotel submitted an amended site plan application, which proposed to develop 370 units and other enhancements to the Initial Site Plan, including but not limited to, reduction of the height of the parking garage, and for increased landscaping; and WHEREAS, on or about January 7, 2003, the City, after public notice and hearing, approved the application for Amended Site Plan for the Property pursuant to Resolution No (the resolution and plan being referred to collectively as the Amended Site Plan ); and WHEREAS, Claimants have raised certain objections to the public notice, the Initial Site Plan, the Amended Site Plan, the RH Rezoning Ordinance and the RH District; and WHEREAS, the Claimants have filed Petitions for Writ of Certiorari, and de novo actions, seeking to quash and/or challenging the City s actions regarding the approvals set forth in the following cases styled: Sherry Temple v. City of Riviera Beach Case No. AP AY Sherry Temple v. City of Riviera Beach Case No. CA AR William Contole v. City of Riviera Beach Case No. AP AY Leland Wesley Nichols, II v The City of Riviera Beach Case No. CA AF which matters are presently pending in Palm Beach County Circuit Court (hereinafter collectively referred to as the Lawsuits ); and WHEREAS, Donna Ruhala, an initial Party to one of the Lawsuits has voluntarily dismissed with prejudice her claims in Case No. AP-02-l 3118 AY; and WHEREAS, the Parties desire to amicably resolve the Claimants objections raised in the Lawsuits as to the initial Site Plan and Amended Site Plan and the RH District and RH Rezoning Ordinance as specifically applied to the Initial Site Plan and Amended Site Plan; and WHEREAS, the City has considered this Settlement Agreement at a duly noticed public hearing. NOW THEREFORE, in reliance upon the true and correct recitals stated above, and in consideration of the mutual covenants, conditions, and agreements contained herein, the exhibits attached hereto, and other conditions contained herein, each Party hereto stipulates and agrees as follows: 1. RECITALS. The foregoing recitals arc true and correct and incorporated herein by this reference. 2. OCEANFRONT HOTEL S REDACTION OF UNITS AND SQUARE

3 FOOTAGE AND MODIFICATION OF FRONT AND REAR SETBACK (a) Oceanfront Hotel agrees to redesign the project to reduce the number of units to be constructed on the Property from 370, as currently approved by the Amended Site Plan, to 306 units. Oceanfront Hotel further agrees that it will redesign the project to reflect a front setback of 100 feet from the west property line to the face of the garage and shall further modify the oceanfront setback for the tower to reflect the east face of the tower structure being no farther cast than the 1979 coastal construction control line ( 1979 CCCL ). Oceanfront Hotel also agrees to reduce the total square footage for the resort hotel units, amenity/common areas, mechanical/b.o.h. and spa (hereinafter Floor Area Breakdown ) referenced on Sheet Al in the Initial Site Plan and Amended Site Plan from 798,825 square feet to 599,118 square feet. In all other respects, the Initial Site Plan and Amended Site Plan approved by the City as modified by this Settlement Stipulation, and the project redesign pursuant thereto shall remain in full force and effect, (b) Oceanfront Hotel shall be entitled to any and all uses and densities for the units to be built on the Property as set forth in the previously adopted RH District and the Minority Employment and Affordable Housing Opportunity Plan ( MEAHOP ) Ordinance (as out1ined below), subject to this Settlement Stipulation. In addition, so long as the units per acre allowed under the RE District are not exceeded, Oceanfront Hotel may elect to designate a portion of the units for permanent multifamily, resort hotel, transient apartment or timeshare or any combination thereof, but the total number of units on the project shall not exceed 306 units By way of example and not as a 1imitation, Oceanfront Hotel may: (i) elect to have 306 resort hotel or timeshare units; or (ii) elect to have a mix of units consisting of 74 permanent multifamily units at 20 units per acre utilizing 3.7 acres of the total 6.6 acres and 232 resort units uti1izing the remaining 2.9 acres for a total of 306 units. 3. MEAHOP APPROVAL To the extent that Oceanfront Hotel desires to invoke the bonus densities under the previously adopted RH District and the City s Minority Employment and Affordable Housing Opportunity Plan (hereinafter MEAHOP Ordinance ), the Claimants and the City agree and acknowledge that Oceanfront Hotel may rely upon the MEAHOP approval obtained by Oceanfront Hotel in Connection with the Initial Site Plan approved on September 4, Claimants and the City agree and acknowledge that Oceanfront Hotel shall not be required to obtain any further approval from the City of Riviera Beach beyond the MEAHOP approvals obtained on September 4, 2002, under the Initial Site Plan.. 4. NO FURTHER APPROVAL NECESSARY. The Claimants and the City agree and acknowledge that Oceanfront Hotel has the legal right to proceed with its development under the Initial Site Plan and Amended Site Plan, as modified by the project redesign and this Settlement Stipulation and pursuant to the previously adopted RH District and the MEAHOP Ordinance. The Claimants and the City acknowledge and agree that there are no other approvals required from the City in order for Oceanfront Hotel to proceed with its development in accordance with the Initial Site Plan and Amended Site Plan, as modified by the project redesign and this Settlement Stipulation and that said development must commence within 18 months of the order approving this Settlement Stipulation and order dismissing the claims against Oceanfront Hotel and the City in the Lawsuits, unless extended as provided in Section 30-60, City of Riviera Beach, Code

4 of Ordinances. Commencement of development shall be as defined in Section 30-60, City of Riviera Beach, Code of Ordinances. Any changes to the project design shall be reviewed and approved administratively by the City s Community Development Department and shall be in conformity with the reduction of units and square footage and modification of front and rear setback in paragraph 2(a) of this Settlement Stipulation. Oceanfront Hotel shall be entitled to obtain a building permit in accordance with the Initial Site Plan and Amended Site Plan, as modified by this settlement Stipulation and any redesign pursuant thereto. 5. DISMISSAL OF LAWSUITS This Settlement Stipulation is subject to the approval of the City Council. Immediately upon the City Council s approval of this Settlement Stipulation, the Claimants shall voluntarily dismiss with prejudice the two pending appeals in Case No. AP-02-l9l1 AY and AP-03-l 439 AY and shall dismiss with prejudice all claims against Oceanfront Hotel as intervener and the City in Case No. CA AH and CA AF with regard to the Initial Site Plan and Amended Site Plan and the RH District and RH Rezoning Ordinance as specifically applied to the Initial Site Plan and Amended Site Plan, which are referenced in the Complaint. Notwithstanding the Claimant s dismissal of its claims against the Initial Site Plan and the Amended Site Plan, the Claimants may amend their Complaint (s) to maintain claims against the City as to RH District and RH Rezoning Ordinance as specifically applied to any other properties in the RH District other than Oceanfront Hotel s property, The Claimants may file an Amended Complaint in each case as long as it does not challenge the Initial Site Plan arid Amended Site Plan, as modified by this Settlement. Stipulation and any project redesign pursuant thereto. The Claimants and Oceanfront Hotel shall each bear their own respective costs and attorneys fees. By approving this Settlement Stipulation, the City does not agree to the viability of the claims asserted by the Claimants or their ability to state a cause of action against the City with respect to the RH District arid the RH Rezoning Ordinance. The City expressly retains its ability to assert any and all applicable defenses. However, (the City shall be reimbursed by Oceanfront Hotel in a sum not to exceed $5, for expenses and attorneys fees expended in defending approval of the Initial Site Plan and Amended Site Plan. Said reimbursement shall be made no later than 30 days after dismissal of the Lawsuits as provided above in this paragraph. 6. NO FURTHER CHALLENGES TO INITIAL SITE PLAN. (a) Claimants agree to waive their claims against the Initial Site Plan and the Amended Site Plan, as modified by the Settlement Stipulation and project redesign pursuant thereto, and the previously adopted RH District, the RH Rezoning Ordinance and the MEAHOP Ordinance approvals as specifically applied to the Initial and Amended Site Plans, and agree not to take any action adverse to the City or Oceanfront Hotel in connection with the Initial Site Plan, the Amended Site Plan, the previously adopted RH District and RH Rezoning Ordinance as specifically applied to the Initial, Site Plan and Amended Site Plan, as modified by this Settlement Stipulation and the project redesign as set forth in paragraph 2(a) above, and MEAHOP Ordinance, provided the terms herein are observed, including specifically the project redesign as sot forth in paragraph 2 (a) above. (b) Claimants agree that any judicial determination by the Court in Case No. CA AH and CA I AF shall not apply to Oceanfront Hotel and its initial Site Plan or Amended Site Plan as modified by this Settlement Stipulation and project redesign in paragraph 2 (a) pursuant thereto, but shall only apply to any other properties in the RH District and their respective

5 property Owners other than the Subject Property and Oceanfront Hotel and its assigns. (c) Except as otherwise provided herein, this Settlement Stipulation in legal effect thereof shall take place immediately without the requirement of any further action by any of the Parties to this Stipulation. All the Parties to this Stipulation, including the Claimants, expressly waive any right to assert any challenge or attack of any Order of Approval of this Settlement Stipulation or any other challenge to the Initial Site Plan, the Amended Site Plan, the previously adopted RH District, the RH Rezoning Ordinance or the MEAHOP Ordinance as specifically applied to Oceanfront Hotel, the Initial Site Plan and Amended Site Plan or this Settlement Stipulation and any redesign pursuant thereto,. The Claimants jointly and severally agree not to assert any objections, challenge, action, or appeal, legal, equitable or otherwise in connection with Oceanfront Hotel s development of the Property including but not limited to, obtaining permits or other approvals from the City, County, Federal or State Governmental Agencies (d) The Claimants agree not to file any formal administrative or judicial actions adverse to the development of the Property pursuant to the initial Site Plan and Amended Site Plan. as modified by this Settlement Stipulation, including but not limited to, the appeal of any building permit, or other permits necessary to the development under the Initial Site Plan arid Amended Site Phm, as modified by this Settlement Stipulation and the project redesign pursuant thereto 7. MUTUAL RELEASE OF OCEANFRONT HOTEL AND CLAIMANTS The Parties agree that, except for the obligations created by this Settlement Stipulation, there are no claims or obligations owed by the Claimants and Oceanfront to one another. Accordingly, except for the obligations created by this Settlement Stipulation, which are not being released herein, Oceanfront Hotel and the Claimants hereby fully remise, release, acquit, satisfy and forever discharge each other and from all manner of action and actions, cause and causes of action, suits, debts, dues. sums of money, accounts, liabilities, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, damages, judgments, executions, claims and demands, whatsoever,, from the beginning of the world to the date of this Settlement Stipulation. This release shall be effective upon the dismissal with prejudice of the claims against Oceanfront Hotel and its Initial Site Plan and Amended Site Plan in the Lawsuits as set forth herein. 8. MISCELLANEOUS PROVISIONS. (a) Each individual, corporate and organizational signatory warrants that it has the right and authority to execute this Settlement Stipulation and to receive the consideration therefor and that this Settlement Stipulation is being entered into freely and voluntarily, Each of the Parties represents and warrants to the other Parties that the execution end delivery of this Stipulation has been duly approved by all requisite action, corporate or otherwise, required to be taken by such Party. (b) The Exhibits attached hereto are incorporated herein by this reference and made a part hereof. (c) This Stipulation shall he construed pursuant to Florida law. Venue shall be in Palm Bosch County, Florida.

6 (d) Except as expressly provided herein, this Stipulation is intended to, and does constitute a full and complete accord and satisfaction with respect to all existing claims, liabilities and obligations between Oceanfront Hotel, Claimants and the City with respect to the Property.. (e) This Stipulation shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs successors agents and/or assigns of the Parties hereto and/or the persons that they represent (f) The Parties acknowledge and agree that this Settlement Stipulation is fully and adequately supported by consideration and is fair and reasonable. The Parties further acknowledge and agree that (i) each Party has had the opportunity to consult with, and has in fact, consulted with legal counsel of its choice as such Party may have desired with respect to all matters settled and resolved herein, (ii) each Party has participated fully in the negotiation and preparation of this Settlement Stipulation, and (iii) each Party has carefully reviewed this Settlement Stipulation and is entering into same freely. Accordingly, this Settlement Stipulation shall not be more strictly construed against any Party (g) In the event that any portion of this Settlement Stipulation shall be declared invalid or unenforceable, the entire Settlement Stipulation shall be null and void. (h) To facilitate execution, the Parties hereto agree that this Stipulation may be executed and telecopied to the other Party and that the executed telecopy shall be binding and enforceable as an original. The Parties hereby agree that neither shall raise the use of the facsimile machine or the fact that any signature or document was transmitted or communicated through the use of a facsimile machine as a defense to this Stipulation, or to any document executed in connection with this Stipulation and forever waive any such defense. This Stipulation may be executed in as many originals and/or counterparts as maybe required and it shall not bo necessary that the signature of, or on behalf of each of the Parties or that the signatures of all persons required to bind any Party, appear on each counterpart; it shall be sufficient that the signature of, or on behalf of each Party, or that the signatures of the persons required to bind any Party, appear on one or more of such counterparts. All counterparts shall collectively constitute a single agreement. 9. NOTICES. Any notices which may be permitted or required hereunder shall be in writing and shall be deemed to have been duly given as of the date and time the same are actually received, whether same arc personally delivered, or s~it by United States Postal Service, postage prepaid by certified mail, return receipt requested, or sent by Fed Ex or other overnight delivery service from which a receipt may be obtained evidencing the date and time delivery was made, and addressed as fo1lows: The City: Pamela W Ryan, City Attorney City of Riviera Beach 600 West Blue Heron Boulevard Riviera Beach, Florida with a copy to: Mary McKinney, Community Development Director City of Riviera Beach 600 West Blue Heron Boulevard

7 Riviera Beach, FL Claimants William Contole and Sherry Temple: Thomas J. Baird, Esq. Thomas J. Baird, PA US. Highway One, Suite 105 North Palm Beach, Florida Claimant L. Leland Wesley Nichols II: Terrell K. Arline, Esq. Terrell K Arline, PA 3205 Brentwood Way Tallahassee, Florida Oceanfront Hotel: Steven J,. Pardo, Esq. Pardo & Gainsburg, LISP 2 South Biscayne Bou1evard, Suite 2475 Miami, Florida with a copy to: Lawrence W. Smith, Esq. Gary, Dytrych & Ryan, P.A 701 U.S. Highway One, Suite 402 North Palm Beach, FL ENTIRE STIPULATION. This Settlement Stipulation constitutes the full and entire agreement and understanding between the Parties with respect to the subject matter hereof, and there are no agreements, representations or warranties except as specifically set forth herein. All prior discussions, negotiations, letters, demands and writings of any kind are fully merged into this Settlement Stipulation and are to be construed to be of no further force or effect and that this Settlement Stipulation shall serve as the sole and entire expression of the agreement and understanding of the Parties with respect to the subject matter hereof. This Settlement Stipulation may not be amended or modified except by an instrument in writing signed by the Party against whom enforcement or such amendment or modification is sought. 11. ENFORCEMENT. The Parties hereto shall have the right to enforce the terms contained herein. The Court retains jurisdiction to consider any actions to enforce the terms of this Settlement Stipu1ation in the event a Party must take action to enforce the terms of this Settlement Stipulation against another Party, the prevailing Party shall be entitled to recover its attorneys fees and costs. IN WITNESS WHEREOF, the Parties and the respective attorneys for Oceanfront Hotel, Claimants, and the City have caused this Settlement Stipulation to be executed on the dates reflected below.

8 ON BEHALF OF SINGER ISLAND OCEAN FRONT HOTELS a Florida limited liability company Steven J. Pardo, Managing Member c/o Pardo & Gainsburg, LLP One Biscayne Tower 2 South Biscayne Blvd., Suite 2475 Miami, Fl By Steven J. Pardo, Managing Member Date Steven J. Pardo, Esq. Attorney for Singer Island Oceanfront Hotels Pardo & Gainsburg, LLP One Biscayne Tower 2 South Biscayne Blvd., Suite 2475 Miami, Florida, By: Steven L Pardo, Esq. Date:

9 ON BEHALF OF CLAIMANTS SHERRY TEMPLE AND WILLIAM CONTOLE Thomas J. Baird, Esq. Thomas J. Baird, P.A U.S. Highway One, Suite 105 North Palm Beach, Florida, By: Tomas J. Baird, Esq. Date: By: Sherry Temple Date: By: William Contole Date

10 ON BEHALF OF CLAIMANT LELAND WESLEY NICHOLS, II Terrell K. Arline, Esq. Terrell K. Arline, P.A Brentwood way Tallahassee, Fl By: Terrell K. Arline, Esq. Date: By: Leland Wesley Nichols, II Date:

11 ON BEHALF OF CITY OF RIVERA BEACH By: Michael D. Brown, Mayor Date: ATTEST: By: Carrie E. Ward, City Clerk Date: AS TO FORM AND LEGAL SUFFICIENCY By: Pamela H. Ryan, City Attorney Date:

12 AGREED ORDER This Court having been presented by the Parties with a Settlement Stipulation, which the Parties agree resolves the claims brought by the Plaintiff against Singer Island Ocean Front Hotels and the City as to the Initial Site Plan and Amended Site Plan and the District and the RH Ordinance as specifically applied to the Initial Site Plan and Amended Site Plan, and the Court being otherwise fully advised in the premises, it is hereby: ORDERED AND ADJUDGED that: 1. The Court hereby finds the Settlement Stipulation to be fair and reasonable, as a matter of law. 2. The Court hereby approves, ratifies, and adopts the Settlement Stipulation, including the factual recitations therein, all of which are incorporated herein by reference as an order of this Court. 3. The Court further finds that, as a matter of law, any and all claims against Singer Island Oceanfront Hotel, as Intervenor, and the City regarding the City s approval of the Initial Site Plan and Amended Site Plan are dismissed with prejudice. This Court is without jurisdiction pursuant to among other legal basis, Fla. Stat (2002), to consider any other appeals or statutory claims to the Initial Site Plan and Amended Site Plan and the RH District said RH Ordinance as specifically applied to the Initial Site Plan and Amend Site Plan. Plaintiff may amend the Complaint to maintain a claim against the City as to the Rezoning Ordinance and EM District as specifically applied to any other properties in the RH District other than Singer Island Oceanfront Hotels, LLC s property which was the subject of is lawsuit. By approving this Settlement Stipulation, the City does not agree to the viability of the claims asserted by the Claimants or their ability to state a cause of action against the City with respect to the RH District and the RH Rezoning Ordinance, The City expressly retains its ability to assert any and all applicable defenses. 4. Singer Island Oceanfront Hotels, LLC and Plaintiff shall bear their own respective attorney fees and

13 costs. 5. The Court shall retain jurisdiction to enforce the terms of the Settlement Stipulation. DONE AND ORDERED in chambers this day of, Copies To: Circuit Court Judge. Terrell K. Arline, Esq, 3205 Brentwood Way, Tallahassee FL Thomas J. Baird, Esq, U.S. Highway One; Suite 105, North Palm Beach, FL Steven J. Pardo, Pardo & Gainsburg, LLP, 2 South Biscayne Blvd, Suite 2475, Miami, Fl Pamela H. Ryan, City Attorney, City of Riviera Beach, 600 West Blue Heron Blvd, Riviera Beach, Fl., Leonard G. Rubin, Esq., Boose, Casey Ciklin, et al,, 515 North Flagler Drive, Suite 1900, West Palm Beach, FL 33401