EXHIBIT 10.2
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SETTLEMENT AGREEMENT BY AND AMONG ARVIDA/JMB PARTNERS, L.P.
AND LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM NO. EIGHT
MAINTENANCE ASSOCIATION, INC. ON BEHALF OF ITSELF AND ITS MEMBERS
TABLE OF CONTENTS
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RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Incorporation of Recitals . . . . . . . . . . . . . . . . 2
2. Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 "Affiliate". . . . . . . . . . . . . . . . . . . . . 2
2.2 "Association". . . . . . . . . . . . . . . . . . . . 2
2.3 "Association Parties". . . . . . . . . . . . . . . . 2
2.4 "Claims" . . . . . . . . . . . . . . . . . . . . . . 2
2.5 "Closing Date" . . . . . . . . . . . . . . . . . . . 3
2.6 "Condominium Unit" . . . . . . . . . . . . . . . . . 4
2.7 "Court". . . . . . . . . . . . . . . . . . . . . . . 4
2.8 "Deficiency Notices" . . . . . . . . . . . . . . . . 4
2.9 "Disney" . . . . . . . . . . . . . . . . . . . . . . 4
2.10 "Disney Indemnity Units" . . . . . . . . . . . . . . 4
2.11 "Effective Final Judgment Date". . . . . . . . . . . 4
2.12 "Final Judgment" . . . . . . . . . . . . . . . . . . 4
2.13 "Indemnification Agreement". . . . . . . . . . . . . 5
2.14 "Lawsuit". . . . . . . . . . . . . . . . . . . . . . 5
2.15 "Mutual General Release" . . . . . . . . . . . . . . 5
2.16 "Notice of Settlement" . . . . . . . . . . . . . . . 5
2.17 "Party" and "Parties". . . . . . . . . . . . . . . . 5
2.18 "Person" . . . . . . . . . . . . . . . . . . . . . . 5
2.19 "Related Agreement". . . . . . . . . . . . . . . . . 5
2.20 "Related Party". . . . . . . . . . . . . . . . . . . 5
2.21 "Released Claim" . . . . . . . . . . . . . . . . . . 5
2.22 "Settlement" . . . . . . . . . . . . . . . . . . . . 5
2.23 "Settlement Amount". . . . . . . . . . . . . . . . . 5
2.24 "Settlement Requirements". . . . . . . . . . . . . . 6
2.25 "Subrogation Claim". . . . . . . . . . . . . . . . . 6
2.26 "Village Homes". . . . . . . . . . . . . . . . . . . 6
3. Actions to be Taken Prior to the Effective Final
Judgment Date . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Exchange of Documents Upon Execution of
This Settlement Agreement. . . . . . . . . . . . . . 6
3.2 Procedures for Entry of Final Judgment . . . . . . . 7
4. Actions to be Taken Following the Effective Final
Judgment Date . . . . . . . . . . . . . . . . . . . . . . 7
4.1 List of Owners . . . . . . . . . . . . . . . . . . . 7
4.2 Execution and Exchange of Mutual General Release
and Owner Releases; Certificate of Insurance . . . . 7
4.3 Delivery of Indemnification Agreement
and Certificate of Insurance . . . . . . . . . . . . 7
4.4 Notice of Settlement . . . . . . . . . . . . . . . . 7
4.5 Payment by Arvida/JMB. . . . . . . . . . . . . . . . 8
5. Cooperation to Effect Settlement. . . . . . . . . . . . . 8
6. Claims Against The ▇▇▇▇ Disney Company and
its Affiliates. . . . . . . . . . . . . . . . . . . . . . 8
7. Disclosure of Settlement. . . . . . . . . . . . . . . . . 8
8. Meeting on Closing Date . . . . . . . . . . . . . . . . . 8
8.1 Arvida/JMB Obligations on Closing Date . . . . . . . 8
8.2 Obligations of The Association Parties
on Closing Date. . . . . . . . . . . . . . . . . . . 9
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9. Association Parties' and their Counsel's
Representations, Warranties and Covenants . . . . . . . . 11
9.1 Corporate Standing . . . . . . . . . . . . . . . . . 11
9.2 Authority and Enforceability . . . . . . . . . . . . 11
9.3 No Other Claims. . . . . . . . . . . . . . . . . . . 11
9.4 Subrogation. . . . . . . . . . . . . . . . . . . . . 11
9.5 Remediation Schedule . . . . . . . . . . . . . . . . 11
9.6 Insurance. . . . . . . . . . . . . . . . . . . . . . 11
9.7 Bankruptcy of the Association. . . . . . . . . . . . 11
9.8 Accuracy of List of Owners . . . . . . . . . . . . . 11
10. Joint Representation, Warranty and Covenant
of the Association Parties and their Counsel
Regarding Attorneys' and Experts' Fees and Expenses . . . 12
11. Arvida/JMB's Representations, Warranties and Covenants. . 12
11.1 Partnership Standing . . . . . . . . . . . . . . . . 12
11.2 Authority and Enforceability . . . . . . . . . . . . 12
11.3 No Other Claims. . . . . . . . . . . . . . . . . . . 12
11.4 Bankruptcy . . . . . . . . . . . . . . . . . . . . . 12
11.5 Financial Ability to Pay Settlement Amount . . . . . 12
11.6 Certain Fees and Expenses. . . . . . . . . . . . . . 12
12. Accuracy and Survival of Representations, Warranties
and Covenants . . . . . . . . . . . . . . . . . . . . . . 13
13. Governing Laws. . . . . . . . . . . . . . . . . . . . . . 13
14. Time of Essence . . . . . . . . . . . . . . . . . . . . . 13
15. Assignment of Settlement Agreement and
Related Agreements. . . . . . . . . . . . . . . . . . . . 13
16. Termination . . . . . . . . . . . . . . . . . . . . . . . 13
17. No Admission of Liability . . . . . . . . . . . . . . . . 14
18. Use of the Settlement Agreement . . . . . . . . . . . . . 14
19. Drafting of Agreements. . . . . . . . . . . . . . . . . . 14
20 Entire Agreement. . . . . . . . . . . . . . . . . . . . . 14
21. Independent Judgment. . . . . . . . . . . . . . . . . . . 14
22. Binding Agreement . . . . . . . . . . . . . . . . . . . . 14
23. Headings. . . . . . . . . . . . . . . . . . . . . . . . . 14
24. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 14
25. Counterparts. . . . . . . . . . . . . . . . . . . . . . . 15
26. Further Assurances. . . . . . . . . . . . . . . . . . . . 15
27. Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . 15
28. Prevailing Party Attorneys' Fees and Costs. . . . . . . . 15
29. Limitation of Liability . . . . . . . . . . . . . . . . . 16
30. Survivability . . . . . . . . . . . . . . . . . . . . . . 16
31. Provisions Severable. . . . . . . . . . . . . . . . . . . 16
32. Certain Rules of Construction . . . . . . . . . . . . . . 16
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EXHIBITS
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1. Disney Indemnity Units
2. Copy of a Deficiency Notice
3. Form of Final Judgment
4. Form of Indemnification Agreement
5. Form of Mutual General Release
6. Form of Notice of Settlement
7. Legal Description of "Village Homes" in Miami-Dade County, Florida
8. Wire Transfer Instructions
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THIS SETTLEMENT AGREEMENT (including all Exhibits hereto, the
"Settlement Agreement") is entered into as of March 9, 2004, by and among
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM NO. EIGHT MAINTENANCE
ASSOCIATION, INC., a Florida corporation not for profit (the
"Association"), on behalf of itself and, to the fullest extent permitted by
applicable law, on behalf of its members (collectively, the "Association
Parties"), and ARVIDA/JMB PARTNERS, L.P., a Delaware limited partnership
("Arvida/JMB") (together, the Association Parties and Arvida/JMB are
referred to herein collectively as the "Parties" or individually as a
"Party"), and is binding upon the Parties upon execution.
RECITALS
WHEREAS, the Association and certain other condominium associations
have filed an Amended Complaint in the Lawsuit on behalf of themselves and
their respective members pursuant to Fla. R. Civ. P. 1.221 and Fla. Stat.
718.111(3) against Arvida/JMB and Disney alleging damages as a result of
certain alleged construction defects in the Village Homes; and
WHEREAS, the Association and Arvida/JMB entered into a General
Release executed as of April 19, 2001 that, among other things, released
Arvida/JMB from any claims arising out of or in any way connected with: (i)
the development, installation, improvement, construction, maintenance,
repair, operation, or use of any buildings, structures, landscaping
improvements or real property owned or used by the Association (including
but not limited to claims for damages and injuries arising from defects in
construction or material whether observable, unobservable, known or
unknown, latent or patent); and (ii) latent design and construction
defects, including but not limited to roof truss systems, reinforcement in
the concrete block walls, fire separation walls and all alleged design
and/or construction defects and deficiencies alleged in certain 1996 and
1999 expert reports; and
WHEREAS, the Parties do not intend to do anything herein that would
supersede, rescind or adversely affect the foregoing General Release; and
WHEREAS, Arvida/JMB has denied and continues to deny any liability to
the Association Parties and the other condominium associations and their
members and, further, has represented that Arvida/JMB has made and will
continue to pursue Claims against Disney and one or more of its Affiliates
with respect to the Association Parties' Condominium Units in the Village
Homes for which construction was commenced before September 10, 1987 and
that were sold on or after that date; and
WHEREAS, Arvida/JMB and the Association Parties now wish to settle
and release their differences and Claims against each other on the terms
and conditions set forth herein without any Party admitting or denying
liability of or to the other; and
WHEREAS, the Parties do not intend to do anything herein that would
jeopardize Arvida/JMB's rights to indemnity, contribution or other causes
of action with respect to Disney and/or its Affiliates.
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AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained here, the Parties agree as follows:
1. INCORPORATION OF RECITALS. The foregoing recitals are true and
correct and made part of this Settlement Agreement.
2. DEFINITIONS. For purposes of this Settlement Agreement, the
following terms have the meanings specified or referred to in this
paragraph 2:
2.1. "AFFILIATE". "Affiliate" of a specified Person means
(i) a past, present or future director, trustee, officer, employee,
member, partner, shareholder or subsidiary of the specified
Person; (ii) a Person that (either directly or indirectly, through
one or more intermediaries) controls, is under common control with or
is controlled by, the specified Person; (iii) any Person that,
directly or indirectly, has a substantial beneficial interest in the
specified Person or in which the specified Person has a substantial
beneficial interest; (iv) any Person that is a past, present or
future director, trustee, officer, employee, member, partner,
shareholder, beneficiary or subsidiary of any of the foregoing; (v)
any insurer of the specified Person; and/or (vi) any relative or
spouse of the specified Person. For the purposes of this definition
and the definition of "Related Party," "control" of a specified
Person (including the correlative terms "controlled by" and "under
common control with") means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of the specified Person, whether through ownership of voting
securities, the ability to appoint one or more of an entity's
trustees, directors or persons in a similar capacity, by contract or
otherwise. Notwithstanding anything to the contrary contained herein
or in any Related Agreement, Disney and its Affiliates shall not be
deemed to be "Affiliates" of Arvida/JMB and its Affiliates, and vice
versa.
2.2 "ASSOCIATION" "Association" has the meaning ascribed to
that term in the introduction to this Settlement Agreement.
2.3 "ASSOCIATION PARTIES." "Association Parties" has the
meaning ascribed to that term in the introduction to this Settlement
Agreement.
2.4 "CLAIMS". "Claims" means (a) all manner of action and
actions, cause and causes of action, (b) claims, liabilities or
obligations of every kind and nature, in law or equity, by statute or
otherwise, suits, debts, dues, sums of money, accounts, indemnities,
guaranties, warranties, reckonings, bonds, bills, covenants,
contracts, controversies, agreements, promises and variances, and (c)
damages (including, without limitation, damages to wood accessories,
trimmings and treatments, porches, columns, railings, stairs, fascia
boards, trusses, walls, tiles, carpets, lamps, personal belongings,
roofs and other areas of the Condominium Units included in the
Association's condominium), judgments, executions, losses, costs or
expenses of every kind and nature (including, without limitation,
costs to remediate, replace or complete, storage and handling
expenses, alternative living expenses, expenses for loss of use or
enjoyment or for inconvenience, loss of value and loss of financing
or refinancing opportunity), compensation and rights of subrogation,
contribution, indemnification or reimbursement, now accrued or
hereafter to accrue (whether known or unknown, anticipated or
unanticipated, suspected or unsuspected, direct, indirect,
consequential, fixed, vested or contingent, asserted or unasserted),
which a Person had, now has, or may in the future have arising out of
or relating to the following: (i) any of the subject matters of the
Lawsuit (including, without limitation, the design and/or
construction of the Condominium Units in the Village Homes, including
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latent defects or other damage of every kind and nature to such
Condominium Units arising out of the actions or omissions of
Arvida/JMB, its Affiliates or any architects, engineers or
subcontractors engaged at any time by or on behalf of Arvida/JMB or
any of its Affiliates); (ii) any order or action of the Miami-Dade
County, Florida Unsafe Structures Board and/or any authority with
jurisdiction to review orders or actions of that Board with respect
to any of the Association Parties' property or the Village Homes, or
any order or action of any other governing body with jurisdiction
over such property or the Village Homes, whether any such order or
action has already been issued or taken or occurs in the future;
(iii) any remediation, alteration or construction-related or design
related activities undertaken in regard to the Condominium Units in
the Village Homes, whether undertaken by or on behalf of Arvida/JMB,
any of its Affiliates, any architects, engineers or subcontractors
engaged at any time by or on behalf of Arvida/JMB or any of its
Affiliates, or by any of the Association Parties or any other Person,
and whether already undertaken or occurring in the future; (iv) the
failure of any Association Parties or any other condominium
association or condominium owners in the Village Homes to undertaken
appropriate and/or timely remediation or alterations to cure all
construction and design defects of every kind and nature (including,
without limitation, latent defects) of, and all other damage to,
their Condominium Units in the Village Homes; or (v) the past,
present or future governance, operation, maintenance or
administration of the Association, any other Village Homes
condominium association, or any of their respective affairs or
property, including, without limitation, the application of the
settlement payment made by Arvida/JMB pursuant to this Settlement
Agreement; provided, however, that the Claims of a Party do not
include the obligations and duties of any other Party under this
Settlement Agreement, the Mutual General Release or any other Related
Agreement. Without limiting the generality of the foregoing, the
"Claims" of a Person include claims or demands for consequential
damages, special damages, punitive damages, prejudgment interest,
attorneys' fees and expenses, experts' fees and expenses, consulting
fees and expenses, any loss, cost, expense, fine or other obligation
assessed or imposed against any of the Association Parties pursuant
to an order of any governmental authority with jurisdiction over
their property or the Village Homes, or arising out of the actions or
failure to act by any of the Association Parties, or any other
Village Homes condominium association or condominium owner or any
other Person, with respect to an order of any governmental authority
pertaining to their property or the Village Homes (including, without
limitation, any action or failure to act in response to the
Deficiency Notices concerning any Condominium Units in the Village
Homes). Further, and without limiting the generality of the
foregoing, (x) the Association Parties acknowledge and agree that the
Claims of the Association Parties and their Related Parties include
any and all claims, demands, causes of action, damages and other
rights or remedies that any of them has asserted or could have
asserted against Arvida/JMB or any of its Affiliates in the Lawsuit
(including, without limitation, that Arvida/JMB or any of its
Affiliates is a "successor developer" to Disney or any of its
Affiliates); and (y) Arvida/JMB acknowledges and agrees that the
Claims of Arvida/JMB and its Affiliates include any and all claims,
demands, causes of action, damages and other rights or remedies that
Arvida/JMB or any of its Affiliates has asserted or could have
asserted against any of the Association Parties or any of their
Related Parties in the Lawsuit.
2.5 "CLOSING DATE". "Closing Date" means the fourth business
day after the Effective Final Judgment Date or such other date as
Arvida/JMB and counsel for the Association Parties may mutually
agree.
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2.6 "CONDOMINIUM UNIT". "Condominium Unit" means the
portions of the Village Homes that are subject to individual
ownership, whether or not contiguous, and all improvements thereon
and all easements and rights appurtenant thereto intended for use in
connection with the Condominium Unit, including all interests of the
owner in the common elements appurtenant to the owner's Condominium
Unit. "Condominium Unit" has the same meaning that the term
"Condominium Parcel" has in the Florida Condominium Act, Fla. Stat.
Ch. 718.
2.7 "COURT". "Court" means the Circuit Court of the 11th
Judicial Circuit in and for Miami-Dade County, Florida with
jurisdiction over the parties to the Lawsuit.
2.8 "DEFICIENCY NOTICES". "Deficiency Notices" means the
notices issued to the owners of Condominium Units in the Village
Homes on or about May 29, 2002, by the Miami-Dade County, Florida
Unsafe Structures Board informing them that certain structural
defects appeared in the common elements of their Condominium Units
and that these defects had to be remediated or the units would be
ordered demolished. A copy of a Deficiency Notice is attached as
Exhibit 2.
2.9 "DISNEY". "Disney" means either or both of ▇▇▇▇ Disney
World Company, ▇▇▇▇ Disney World Company d/b/a ARDC Corporation and
The ▇▇▇▇ Disney Company (n/k/a Disney Enterprises, Inc.).
2.10 "DISNEY INDEMNITY UNITS". "Disney Indemnity Units" means
those Condominium Units that were designed and built in whole or in
part by one or more of the Affiliates of Disney and that were
originally sold by Arvida/JMB after September 9, 1987. The Disney
Indemnity Units are identified in Exhibit 1.
2.11 "EFFECTIVE FINAL JUDGMENT DATE". "Effective Final
Judgment Date" means the first business day after all of the
following conditions or events have been met or have occurred:
2.11.1 The Final Judgment has been entered by the Court
in the Lawsuit and not subsequently modified or vacated;
2.11.2 The time has expired in which to seek review by
appeal of the Final Judgment without any review or appeal
having been taken therefrom pursuant to Fla. R. App. P. 9.100
or otherwise; or, if review or appeal is taken, then such
review or appeal shall have been finally determined (subject to
no right to further review or appeal) by the highest court
before which the review or appeal is sought and allowed, and
the review or appeal shall have been resolved in such manner as
to permit the consummation of the Settlement to be effected by
this Settlement Agreement in accordance with all of its terms
and provisions without modification in any material respect
unless approved by the Parties; and
2.11.3 The Settlement Requirements have been met.
2.12 "FINAL JUDGMENT". "Final Judgment" means the Court's
final, appealable order in the Lawsuit, substantially in the form of
Exhibit 3, acceptable to each of Arvida/JMB's counsel and counsel for
the Association Parties and that:
2.12.1 Dismisses in its entirety and with prejudice the
Claims all Association Parties against Arvida/JMB and its
Affiliates, without costs to or against any other Party except
as otherwise provided herein; and
2.12.2 Determines the Final Judgment to be a final
order.
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2.13 "INDEMNIFICATION AGREEMENT." "Indemnification Agreement"
means the agreement for the indemnification of Arvida/JMB and its
Affiliates by the Association Parties to be executed and delivered in
accordance with paragraph 4.3 on the Closing Date and substantially
in the form of Exhibit 4.
2.14 "LAWSUIT" "Lawsuit means that certain lawsuit styled
LAKES OF THE MEADOW VILLAGE HOMES CONDOMINIUM NOS. ONE, TWO, THREE,
FOUR, FIVE, SIX, SEVEN, EIGHT AND NINE MAINTENANCE ASSOCIATION, INC.,
including all members thereof, Plaintiffs vs. ARVIDA/JMB PARTNERS,
L.P., a Delaware limited partnership, and ▇▇▇▇ DISNEY WORLD COMPANY,
a Delaware corporation, Defendants, CASE NO. 95-23003-CA-08, pending
in the Circuit Court of the 11th Judicial Circuit in and for Miami
Dade County, Florida, referred to in the Recitals of this Settlement
Agreement and which is currently prosecuted against Arvida/JMB and
Disney.
2.15 "MUTUAL GENERAL RELEASE". "Mutual General Release" means
the release of Claims to be executed and delivered in accordance with
paragraph 4.2 on the Closing Date and substantially in the form of
Exhibit 5.
2.16 "NOTICE OF SETTLEMENT". "Notice of Settlement" means a
notice of the terms of the Settlement in recordable form, to be
executed and delivered by the Association on the Closing Date and
substantially in the form of Exhibit 6.
2.17 "PARTY" and "PARTIES". "Party" or "Parties" has the
meaning ascribed to that term in the introduction to this Settlement
Agreement.
2.18 "PERSON". "Person" means any natural person, any legal
entity such as a corporation, association, partnership, trust or any
other type of legal entity, a governmental office or agency or a
division, department, board, bureau, or other sub-part of a
governmental office or agency.
2.19 "RELATED AGREEMENT". "Related Agreement" means any
agreement or instrument executed in connection with this Settlement
Agreement, including, without limitation, the Mutual General Release,
the Indemnification Agreement, the Notice of Settlement and the Final
Judgment.
2.20 "RELATED PARTY". "Related Party" of an Association Party
means (i) a past or present director, officer, employee or member of
the Association; (ii) a predecessor-in-interest or predecessor-in
title (in the case of an Association Party who is an owner of a
Condominium Unit in the Association's condominium); (iii) a Person
which (either directly or indirectly, through one or more
intermediaries) controls, is under common control with or is
controlled by, the Association Party; (iv) any insurer of the
Association Party; or (v) any relative or spouse of the Association
Party. Notwithstanding anything to the contrary contained herein or
in any Related Agreement, Disney and its Affiliates shall not be
deemed to be "Related Parties" of any Association Party.
2.21 "RELEASED CLAIM". "Released Claim" means a Claim to be
released pursuant to the Mutual General Release.
2.22 "SETTLEMENT". "Settlement" means the transactions and
resulting legal positions and rights to be effectuated by virtue of
this Settlement Agreement and the Related Agreements.
2.23 "SETTLEMENT AMOUNT". "Settlement Amount" means the
amount to be paid by Arvida/JMB under paragraph 4.5 (i.e.,
$1,385,000).
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2.24 "SETTLEMENT REQUIREMENTS". "Settlement Requirements"
means all the following conditions and events:
2.24.1 All Parties and their counsel have executed this
Settlement Agreement;
2.24.2 The Court has entered the Final Judgment, not
subsequently modified or vacated; and
2.24.3 This Settlement Agreement has not been terminated
in accordance with paragraph 16.
2.25 "SUBROGATION CLAIM". "Subrogation Claim" has the meaning
ascribed to that term in paragraph 9.4
2.26 "VILLAGE HOMES". "Village Homes" means the four-plex
condominium buildings and the Condominium Units therein, the legal
descriptions of which are contained in Exhibit 7.
3. ACTIONS TO BE TAKEN PRIOR TO THE EFFECTIVE FINAL JUDGMENT DATE.
3.1 EXCHANGE OF DOCUMENTS UPON EXECUTION OF THIS SETTLEMENT
AGREEMENT.
3.1.1 Simultaneously with its execution and delivery of
this Settlement Agreement, Arvida/JMB shall deliver to the
Association (i) copies of the Certificate of Limited
Partnership and the Partnership Agreement of Arvida/JMB,
certified as true and correct and in full force and effect
(without modification, amendment or supplement) as of the date
of this Settlement Agreement by an officer of the general
partner of Arvida/JMB, (ii) corporate resolutions of the
general partner of Arvida/JMB, certified as true and correct
and in full force and effect (without modification, amendment
or supplement) as of the date of this Settlement Agreement by
the secretary or assistant secretary of the general partner of
Arvida/JMB, specifically approving and authorizing the
execution, delivery and performance by Arvida/JMB of this
Settlement Agreement, (iii) a certificate of incumbency as of
the date of this Settlement Agreement from the secretary or
assistant secretary of the general partner of Arvida/JMB for
the officer of such general partner executing this Settlement
Agreement on behalf of Arvida/JMB, and (iv) Certificates of
Good Standing or Authority to Transact Business for Arvida/JMB
from the Secretary of State of each of the States of Delaware
and Florida.
3.1.2 Simultaneously with its execution and delivery of
this Settlement Agreement, the Association shall deliver to
Arvida/JMB (i) copies of its Articles of Incorporation and By
laws and the Declaration of Condominium for the Association's
condominium, each certified as true and correct and in full
force and effect (without modification, amendment or
supplement) as of the date of this Settlement Agreement by the
corporate secretary of the Association, (ii) corporate
resolutions of the Association, certified as true and correct
and in full force and effect (without modification, amendment
or supplement) as of the date of this Settlement Agreement by
the corporate secretary of the Association, specifically
approving and authorizing the execution, delivery and
performance by the Association, on behalf of itself and its
members, of this Settlement Agreement, (iii) a certificate of
incumbency as of the date of this Settlement Agreement from the
corporate secretary of the Association for the officer
executing this Settlement Agreement on behalf of the
Association, and (iv) a Certificate of Good Standing or
Authority to Transact Business for the Association from the
Secretary of State of the State of Florida.
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3.2 PROCEDURES FOR ENTRY OF FINAL JUDGMENT. The Parties
agree that they will use reasonable efforts to obtain entry by the
Court of the Final Judgment as soon as practicable after the
execution of this Settlement Agreement by the Parties and their
counsel and will defend the Settlement in the event that any
Association Party or any other Person contests the terms of the
Settlement. To that end, counsel for the Association Parties will
draft any motions, memoranda or briefs necessary to obtain approval
of the Final Judgment before the Court and any appellate courts, as
the case made be; provided, however, that counsel for Arvida/JMB
shall have the right to review and comment on any motions, memoranda
or briefs prior to their filing, and counsel for the Association
Parties shall make reasonable efforts to address or incorporate
comments made by counsel for Arvida/JMB. The Association Parties
will pay for any expense (such as expert witness fees) that is
reasonably necessary in order to obtain approval of the Final
Judgment by the Court and any appellate courts. In addition, counsel
for Arvida/JMB may, at Arvida/JMB's expense, file with the Court and
any appellate court such motions, memoranda, briefs and other
documents in support of final approval of the Settlement as
Arvida/JMB deems appropriate.
4. ACTIONS TO BE TAKEN FOLLOWING THE EFFECTIVE FINAL JUDGMENT
DATE.
4.1 LIST OF OWNERS. On or as soon as practicable (but in no
event later than eight (8) days) after the Closing Date, the
Association shall provide to Arvida/JMB a list of the names and
addresses of all Persons owning legal title to the Condominium Units
listed on Exhibit 1 as of the Closing Date, such list to be certified
to be true and correct by the corporate secretary of the Association.
By way of example, for any Condominium Unit in which legal title is
held in joint tenancy, the name and address of each joint tenant
shall be included in the list of owners provided by the Association,
and such list shall be certified as true and correct by the corporate
secretary of the Association.
4.2 EXECUTION AND EXCHANGE OF MUTUAL GENERAL RELEASE AND
OWNER RELEASES; CERTIFICATE OF INSURANCE. In accordance with
paragraph 8, on the Closing Date, the Association, on behalf of
itself, its members and their respective Related Parties, and
Arvida/JMB, on behalf of itself and its Affiliates, will execute and
deliver to each other the Mutual General Release substantially in the
form of Exhibit 5.
4.3 DELIVERY OF INDEMNIFICATION AGREEMENT; CERTIFICATE OF
INSURANCE. In accordance with paragraph 8, on the Closing Date and
simultaneously with the exchange of the Mutual General Release, the
Association, on behalf of itself and its members, and Arvida/JMB will
execute and deliver to each other the Indemnification Agreement
substantially in the form of Exhibit 4. In addition, the Association
will deliver to Arvida/JMB a certificate of insurance evidencing the
comprehensive general liability insurance coverage referred to in
paragraph 9.6.
4.4 NOTICE OF SETTLEMENT. In accordance with paragraph 8, on
the Closing Date, the Association will execute and deliver to
Arvida/JMB such number of originals of the Notice of Settlement
substantially in the form of Exhibit 6 as Arvida/JMB may reasonably
request. Arvida/JMB may cause the Notice of Settlement to be
recorded as to any or all of the Association Parties (and any of
their successors-in-interest or successors in title) and their
property in the public records of Miami-Dade County, Florida.
Arvida/JMB will bear all such recording fees. The Association
Parties and their counsel will cooperate fully with Arvida/JMB in
recording such document.
7
4.5 PAYMENT BY ARVIDA/JMB. In accordance with paragraph 8,
on the Closing Date, Arvida/JMB will pay to the Association for the
benefit of its members the sum of one million three hundred eighty
five thousand dollars ($1,385,000) (the "Settlement Amount") by wire
transfer in accordance with the instructions set forth in Exhibit 8.
The Settlement Amount shall be paid solely to the Association and
shall be used to effect a remediation of the Condominium Units within
the Association's condominium. Arvida/JMB shall have no duty to
the Association, any other Association Parties or any other Person to
ensure or oversee the application of the Settlement Amount after it
is paid to the Association.
5. COOPERATION TO EFFECT SETTLEMENT. The Association and
Arvida/JMB agree to cooperate at their own expense, and to cause their
respective counsel to cooperate, after the date hereof in order to effect
the transactions contemplated by this Settlement Agreement. In addition,
after the Closing Date upon Arvida/JMB's reasonable request the Association
Parties agree to make available to Arvida/JMB and/or its designees the
Disney Indemnity Units for inspection upon reasonable prior notice in
connection with the prosecution of Arvida/JMB's Claims or any other rights
or remedies against Disney and/or any of its Affiliates.
6. CLAIMS AGAINST DISNEY AND ITS AFFILIATES. To the extent that
the Parties have Claims, causes of action or any other rights or remedies
against Disney or any of its Affiliates, it is the Parties' intent that
nothing in this Settlement Agreement, the Mutual General Release or any
other Related Agreement shall release, alter, hinder, abrogate or otherwise
adversely affect (and each Party hereby reserves) the rights to pursue such
Claims, causes of action and any other rights or remedies (including
without limitation any causes of action for indemnification or
contribution) against Disney or any of its Affiliates.
7. DISCLOSURE OF SETTLEMENT. Until the Closing Date, the Parties
will not discuss or disseminate any information regarding this Settlement
Agreement or the transactions contemplated by this Settlement Agreement to
any members of the media or the press. Counsel for the Association Parties
may, however, discuss this Settlement Agreement prior to the Closing Date
with the Association Parties and in either settlement discussions or
mediation with Disney and/or any of its Affiliates. Arvida/JMB may
disclose prior to the Closing Date such terms and conditions of this
Settlement Agreement as it determines may be required by applicable laws,
rules and regulations or by its partnership agreement or other legal
instruments by which it is bound and in either settlement discussions or
mediation with Disney and/or any of its Affiliates.
8. MEETING ON CLOSING DATE. The Parties and their counsel will
meet on the Closing Date at ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, PA's offices in
Miami, Florida to deliver or exchange all the following:
8.1 ARVIDA/JMB OBLIGATIONS ON CLOSING DATE. Subject to the
satisfaction or occurrence (or waiver by Arvida/JMB) of all
Settlement Requirements and the performance or fulfillment of all
covenants and agreements specified by this Settlement Agreement to be
undertaken by the Association Parties on or before the Closing Date,
including without limitation the deliveries to be made by the
Association Parties pursuant to paragraph 8.2, on the Closing Date
Arvida/JMB will:
8.1.1 Pay to the Association, for the benefit of its
members, the Settlement Amount in immediately available funds
via wire transfer in accordance with the instructions on
Exhibit 8.
8.1.2 Deliver to the Association a counterpart original
executed by Arvida/JMB of the Mutual General Release to be
exchanged in accordance with paragraph 4.2
8
8.1.3 Deliver to the Association a counterpart original
executed by Arvida/JMB of the Indemnification Agreement to be
exchanged in accordance with paragraph 4.3.
8.1.4 Deliver to the Association written opinions of
counsel for Arvida/JMB to the effect that each of this
Settlement Agreement, the Mutual General Release and the
Indemnification Agreement has been duly authorized and validly
executed by Arvida/JMB.
8.1.5 Deliver to the Association (i) a facsimile or
telegram of Good Standing or Authority to Transact Business for
Arvida/JMB dated as of the Closing Date from the Secretary of
State of each of the States of Delaware and Florida; (ii)
either (x) copies of the Certificate of Limited Partnership and
the Partnership Agreement of Arvida/JMB, certified as true and
correct and in full force and effect (without modification,
amendment or supplement) as of the Closing Date by an officer
of the general partner of Arvida/JMB or (y) if there has been
no change since copies of those documents were certified and
delivered to the Association pursuant to paragraph 3.1.1, a
certificate of an officer of the general partner of Arvida/JMB
certifying that the copies of the Certificate of Limited
Partnership and the Partnership Agreement of Arvida/JMB
delivered pursuant to paragraph 3.1.1 remain true and correct
and in full force and effect (without modification, amendment
or supplement) as of the Closing Date; (iii) copies of
corporate resolutions of the general partner of Arvida/JMB,
certified as true and correct and in full force and effect
(without modification, amendment or supplement) as of the
Closing Date by the secretary or assistant secretary of the
general partner of Arvida/JMB, approving and authorizing the
execution, delivery and performance of this Settlement
Agreement and each Related Agreement to be executed and
delivered by Arvida/JMB; and (iv) a certificate of incumbency
as of the Closing Date from the secretary or assistant
secretary of the general partner of Arvida/JMB for the officers
of such general partner who are executing any of the Related
Agreements.
8.2 OBLIGATIONS OF THE ASSOCIATION PARTIES ON CLOSING DATE.
Subject to the satisfaction or occurrence (or waiver by Arvida/JMB)
of all Settlement Requirements and the performance or fulfillment of
all covenants and agreements specified by this Settlement Agreement
to be undertaken by the Arvida/JMB on or before the Closing Date,
including without limitation the payment and deliveries to be made by
Arvida/JMB pursuant to paragraph 8.1, on the Closing Date the
Association Parties will:
8.2.1 Deliver to the Arvida/JMB a counterpart original
executed by the Association, on behalf of itself and its
members, of the Mutual General Release to be exchanged in
accordance with paragraph 4.2.
8.2.2 Deliver to Arvida/JMB a counterpart original
executed by the Association, on behalf of itself and its
members, of the Indemnification Agreement to be exchanged in
accordance with paragraph 4.3.
8.2.3 Deliver to Arvida/JMB originals executed by the
Association of the Notice of Settlement to be delivered in
accordance with paragraph 4.4.
9
8.2.4 Either (i) deliver to Arvida/JMB a written list
of the names and addresses of all Persons owning legal title to
each Condominium Unit listed on Exhibit 1 as of the Closing
Date and certified by the corporate secretary of the
Association in accordance with paragraph 4.1, or (ii) advise
Arvida/JMB in writing on the Closing Date of the date (not
later than eight (8) days after the Closing Date) on which such
list will be provided to Arvida/JMB.
8.2.5 Deliver to Arvida/JMB written opinions of counsel
for the Association Parties to the effect that each of this
Settlement Agreement, the Mutual General Release and the
Indemnification Agreement has been duly authorized and validly
executed by the Association, on behalf of itself and its
members.
8.2.6 Deliver to Arvida/JMB a certificate of insurance
for the Association evidencing the comprehensive general
liability insurance coverage referred to in paragraph 9.6, in
accordance with paragraph 4.3.
8.2.7 Deliver to Arvida/JMB such certificates and other
documents (including, without limitation, (i) either (x) copies
of the Declaration of Condominium for the Association's
condominium and the Articles of Incorporation and By-laws for
the Association, each certified as true and correct and in full
force and effect (without modification, amendment or
supplement) as of the Closing Date by the corporate secretary
of the Association or (y) if there has been no change since the
copies of those documents were certified and delivered to
Arvida/JMB pursuant to paragraph 3.1.2, a certificate of the
corporate secretary of the Association certifying that the
copies of the Declaration of Condominium, Articles of
Incorporation and By-laws delivered pursuant to paragraph 3.1.2
remain true and correct and in full force and effect (without
modification, amendment or supplement) as of the Closing Date;
(ii) a facsimile or telegram of Good Standing or Authority to
Transact Business for the Association dated as of the Closing
Date from the Secretary of State of the State of Florida; (iii)
copies of the corporate resolutions of the Association,
certified as true and correct and in full force and effect
(without modification, amendment or supplement) as of the
Closing Date by the corporate secretary of the Association,
specifically approving and authorizing the execution, delivery
and performance by the Association, on behalf of itself and its
members, of this Settlement Agreement and each Related
Agreement to which the Association is a party; (iv) a
certificate of incumbency as of the Closing Date from the
corporate secretary of the Association for the officers of the
Association who are executing any of the Related Agreements;
and (v) copies of minutes of meetings for the Association's
board of directors and/or members, certified by the corporate
secretary of the Association as true and correct and in full
force and effect (without modification, amendment or
supplement)) as Arvida/JMB may reasonably request to
demonstrate that the Association is duly organized and in good
standing under the laws of the State of Florida, that the
Association has authorized and approved the Settlement
Agreement and each Related Agreement to which it is a party and
that the Association and its members have otherwise taken all
action required to be performed by it or them under the
Settlement Agreement or any Related Agreement on or before the
Closing Date.
10
9. ASSOCIATION PARTIES' REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Association Parties represent and warrant or covenant, as the case may
be, to Arvida/JMB as follows:
9.1 CORPORATE STANDING. The Association is a duly organized,
validly existing corporation not for profit, organized and in good
standing under the laws of the State of Florida.
9.2 AUTHORITY AND ENFORCEABILITY. The Association has all
requisite right, power and authority under its organizational
documents and applicable laws to execute and deliver, on behalf of
itself and its members, this Settlement Agreement, the Mutual General
Release and the Indemnification Agreement and to consummate the
transactions contemplated hereby and thereby, and each of this
Settlement Agreement, the Mutual General Release and the
Indemnification Agreement, when executed and delivered by the
Association, will constitute the legal, valid and binding obligation
of the Association Parties, enforceable in accordance with its terms,
subject to bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to limitations on the availability of
equitable remedies.
9.3 NO OTHER CLAIMS. Except for the obligations and
undertakings of Arvida/JMB set forth in this Settlement Agreement and
the Related Agreements, none of the Association Parties has any Claim
against Arvida/JMB or any of its Affiliates that will not be released
pursuant to the terms of the Mutual General Release.
9.4 SUBROGATION. None of the Association Parties or any of
their Related Parties has previously made a claim against any
insurance company for any of their Claims against Arvida/JMB or any
of its Affiliates, nor is any Association Party aware of any
circumstances that would give rise to any insurance company having
cause to make a subrogation claim (a "Subrogation Claim") against
Arvida/JMB or any of its Affiliates in connection with any of the
matters contemplated by this Settlement Agreement (or, if any such
claim has been made against an insurance company, the Association
Parties will cause such insurance company to waive any and all
Claims, including, without limitation, all Subrogation Claims,
against Arvida/JMB and its Affiliates, prior to the Closing Date).
9.5 REMEDIATION SCHEDULE. The Association will contract for,
undertake and complete all necessary remediation of the Condominium
Units and other property included in the Association's condominium in
a timely manner under the circumstances; provided, however, that
Arvida/JMB shall have no duty to any Person to enforce the provisions
of this paragraph 9.5
9.6 INSURANCE. The Association will maintain comprehensive
general liability insurance, naming Arvida/JMB as an additional
insured, for a period of at least twenty (20) months from the Closing
Date with liability coverage limits of at least $1 million per
occurrence and $2 million in the aggregate. The Association Parties
will provide to Arvida/JMB on the Closing Date a certificate of
insurance for the Association that demonstrates such comprehensive
general liability insurance coverage. In no event shall Arvida/JMB
have any duty to any Person to enforce the provisions of this
paragraph 9.6.
9.7 BANKRUPTCY OF THE ASSOCIATION. The Association is not
contemplating seeking protection from creditors under the United
States Bankruptcy Code or taking advantage of insolvency or other
laws affecting the rights of creditors generally.
9.8 ACCURACY OF LIST OF OWNERS. The list of owners of the
Condominium Units listed on Exhibit 1 provided to Arvida/JMB in
accordance with paragraph 4.1 is true and correct as of the Closing
Date.
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10. JOINT REPRESENTATION, WARRANTY AND COVENANT OF THE ASSOCIATION
PARTIES AND THEIR COUNSEL REGARDING ATTORNEYS' AND EXPERTS' FEES AND
EXPENSES. The Association Parties and their counsel represent, warrant and
covenant to Arvida/JMB and its Affiliates that Arvida/JMB and its
Affiliates do not owe to the Association Parties or their counsel any
attorneys', experts' or consultants' fees or expenses that are not included
in the Settlement Amount, and neither the Association Parties nor their
counsel will seek in the future any such fees or expenses in connection
with the Lawsuit from Arvida/JMB or its Affiliates.
11. ARVIDA/JMB REPRESENTATIONS, WARRANTIES AND COVENANTS.
Arvida/JMB represents, warrants or covenants, as the case may be, to the
Association Parties as follows:
11.1 PARTNERSHIP STANDING. Arvida/JMB is a duly organized,
validly existing limited partnership organized under the laws of the
State of Delaware and authorized to do business in the State of
Florida.
11.2 AUTHORITY AND ENFORCEABILITY. Arvida/JMB has all
requisite right, power and authority under its organizational
documents and applicable laws to execute and deliver this Settlement
Agreement, the Mutual General Release and the Indemnification
Agreement and to consummate the transactions contemplated hereby and
thereby by and through its general partner, Arvida/JMB Managers,
Inc., and each of this Settlement Agreement, the Mutual General
Release and the Indemnification Agreement, when executed and
delivered by Arvida/JMB, will constitute the legal, valid and binding
obligation of Arvida/JMB, enforceable in accordance with its terms,
subject to bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to limitations on the availability of
equitable remedies.
11.3 NO OTHER CLAIMS. Except for the obligations and
undertakings of Association Parties set forth in this Settlement
Agreement and the Related Agreements, Arvida/JMB does not have any
Claim against any Association Parties that will not be released
pursuant to the terms of the Mutual General Release.
11.4 BANKRUPTCY OF ARVIDA/JMB. Arvida/JMB is not
contemplating seeking protection from creditors under the United
States Bankruptcy Code or taking advantage of insolvency or other
laws affecting the rights of creditors generally.
11.5 FINANCIAL ABILITY TO PAY SETTLEMENT AMOUNT. Arvida/JMB
has available funds to pay the Settlement Amount as contemplated
herein.
11.6 CERTAIN FEES AND EXPENSES. Arvida/JMB has paid, or has
or will cause to be paid, without setoff or deduction against the
Settlement Amount, all fees and expenses incurred through the date of
this Settlement Agreement for services requested by Arvida/JMB from
any expediter, architect, engineer, contractor or consultant that
were rendered for, or could be used to benefit, the Association
Parties or their Condominium Units, including, without limitation,
the services of ▇▇▇▇▇▇▇ and Associates, Inc., Deserata Building Corp.
and ▇▇▇▇▇▇▇▇ Consulting Engineers, PLLC. Arvida/JMB will not request
any such services be performed after the date of this Settlement
Agreement unless Arvida/JMB pays for such services (or causes them to
be paid) without setoff or deduction from the Settlement Amount.
12
12. ACCURACY AND SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
COVENANTS. The Association Parties represent and warrant to Arvida/JMB
that each of their representations and warranties contained in paragraph 9
is true and correct in all material respects on the date hereof and will be
true and correct in all material respects on the Closing Date. It shall be
a condition precedent to Arvida/JMB's performance of its obligations under
paragraph 8.1 that each of the representations and warranties of the
Association Parties contained in paragraph 9 is true and correct in all
material respects on the Closing Date. Arvida/JMB represents and warrants
to the Association Parties that each of its representations and warranties
contained in paragraph 11 is true and correct in all material respects on
the date hereof and will be true and correct in all material respects on
the Closing Date. It shall be a condition precedent to the Association
Parties' performance of their obligations under paragraph 8.2 that each of
the representations and warranties of Arvida/JMB contained in paragraph 11
is true and correct in all material respects on the Closing Date. Each of
the representations, warranties and covenants contained in this Settlement
Agreement shall survive the closing of the transactions contemplated by
this Settlement Agreement.
13. GOVERNING LAWS. This Settlement Agreement shall be governed by
and be construed in accordance with the internal laws of the State of
Florida.
14. TIME OF ESSENCE. Time is of the essence in this Settlement
Agreement and all of its terms and conditions.
15. ASSIGNMENT OF SETTLEMENT AGREEMENT AND RELATED AGREEMENTS.
Arvida/JMB's rights and obligations under this Settlement Agreement and
each Related Agreement may be assigned or delegated to another Person, but
such assignment or delegation shall not relieve Arvida/JMB of its
obligations under this Settlement Agreement and the Related Agreements,
except as provided in the following sentence. Arvida/JMB's rights and
obligations under this Settlement Agreement and each Related Agreement
shall be automatically assigned or delegated to any Person who acquires all
or substantially all of the assets and liabilities of Arvida/JMB (whether
by merger, by contract or otherwise), and thereafter Arvida/JMB shall have
no obligations under this Settlement Agreement or any Related Agreement.
The Association may not assign or delegate any rights or obligations
(whether on behalf of itself or any of its members) under this Settlement
Agreement or any Related Agreement without the prior written consent of
Arvida/JMB, and any purported assignment or delegation of any such rights
or obligations without the prior written consent of Arvida/JMB shall be
null and void and of no force or effect.
16. TERMINATION. This Settlement Agreement may be terminated prior
to the Court's entry of the Final Judgment upon written notice: (a) by the
Association, on behalf of itself and the other Association Parties, or by
Arvida/JMB if the other party has committed a material breach of this
Settlement Agreement, and such breach remains uncured for ten (10) business
days after written notice to such party; (b) by the Association, on behalf
of itself and the other Association Parties, or by Arvida/JMB, if the
Court, through an order, ruling or otherwise, effects a material change in
the terms and provisions of this Settlement Agreement or any Related
Agreement; (c) by Arvida/JMB, in its sole and absolute discretion, if the
owners of more than three (3) Condominium Units listed on Exhibit 1 file
timely and effective exclusions from the Settlement and the Court
determines that such owners are excluded from the Settlement; or (d) by the
Association, on behalf of itself and the other Association Parties, or by
Arvida/JMB at any time after May 1, 2004, if the Court has not entered the
Final Judgment on or before such date. Upon any such termination, this
Settlement Agreement shall be void and have no further force or effect, the
Parties shall immediately return to their respective positions prior to the
execution by the Parties of this Settlement Agreement, and thereafter this
Settlement Agreement shall have no effect on their respective various
rights, Claims and defenses.
13
17. NO ADMISSION OF LIABILITY. Except in connection with an action
or proceeding to enforce or give effect to the terms and provisions hereof
or any Related Agreement, neither this Settlement Agreement, any document
referred to herein, any document prepared in connection herewith, nor any
action taken to effect the Settlement is, or may be construed as, or may be
used as or offered as, evidence of, or an admission or concession by or
against any Party, its Related Parties or Affiliates on any point of fact
or law raised in the Lawsuit or otherwise, or of any alleged error, fault,
wrongdoing or liability whatsoever.
18. USE OF THE SETTLEMENT AGREEMENT. Notwithstanding any other
provision hereof, Arvida/JMB may file this Settlement Agreement, the Mutual
General Release and/or any other Related Agreement (including the Final
Judgment) in (i) any action that may be brought against it or any of its
Affiliates that asserts any of the Released Claims in order to support a
defense or claim based on principles of res judicata, collateral estoppel,
accord and satisfaction, release, good faith settlement, judgment bar or
reduction or any other theory of claim preclusion or issues preclusion or
similar defense, (ii) any action that may be brought by it or its
Affiliates to assert a claim or right hereunder or thereunder, or (iii) any
action involving Disney or any of its Affiliates.
19. DRAFTING OF AGREEMENTS. This Settlement Agreement and each
Related Agreement were drafted by the Parties and their counsel with each
having an equal right to review, comment and draft specific provisions.
Accordingly, in the event of any dispute or suit related to the
interpretation of this Settlement Agreement, any Related Agreement or any
of their respective terms, no provision hereof or thereof will be construed
against any Party as the draftsman of such agreement.
20. ENTIRE AGREEMENT. This Settlement Agreement, along with the
Related Agreements and any other instruments or documents contemplated
hereby or thereby, constitutes the entire agreement of the Parties with
respect to the Settlement, and supersedes all of their prior agreements and
understandings in respect of the Settlement, but shall not supersede,
rescind or adversely affect any other settlement or release of claims
previously entered into by the Parties. This Settlement Agreement may not
be modified or amended except by an instrument in writing signed by the
Association, on behalf of itself and its members, and Arvida/JMB.
21. INDEPENDENT JUDGMENT. The Parties have executed this
Settlement Agreement upon their independent judgment and upon the advice of
their counsel without any warranties and representations, express or
implied, of any kind or nature from each other except as otherwise
specially set forth in this Settlement Agreement. The Parties acknowledge
that this Settlement Agreement and each Related Agreement, as well as the
transactions contemplated hereby and thereby, were negotiated at arms'
length with each Party having its own counsel and exercising its individual
and independent judgment.
22. BINDING AGREEMENT. This Settlement Agreement shall be binding
upon and inure to the benefit of the Parties hereto, their successors and
permitted assigns.
23. HEADINGS. All headings used in this Settlement Agreement are
for convenience and reference purposes only and shall not be considered as
part of this Settlement Agreement, nor shall they be deemed to limit or
otherwise affect any of the terms or provisions hereof.
24. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given (a) when delivered in
person, or (b) when a facsimile is sent by telecopier (with receipt
confirmed), or (c) when sent by first class certified or registered mail,
postage prepaid, return receipt requested, or (d) on receipt after being
sent by overnight delivery; provided that in each case they are addressed
as follows:
14
IF TO ARVIDA/JMB: Arvida/JMB Partners, L.P.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Professional Association
Brickell Bayview Center
Suite 3000
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ Coie LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO ANY ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
ASSOCIATION PARTY: Board Member
Lakes of the Meadow Village Homes
Condominium No. Eight Maintenance
Association, Inc.
▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Rafferty, Hart, ▇▇▇▇▇▇▇▇▇▇▇, Gelles
& Tenenholtz, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any Person may change its address for sending notices by providing
written notice of such change in accordance with this paragraph.
25. COUNTERPARTS. This Settlement Agreement may be executed in
counterparts and shall constitute an agreement binding on all the Parties
hereto notwithstanding that all Parties are not signatories to the original
or the same counterpart. Facsimile signature pages may be transmitted by
telecopier, and when received shall have the same force and effect as if
executed as an original.
26. FURTHER ASSURANCES. Each Party agrees to execute and deliver
to the other Party such further agreements, instruments or other documents
and to do such other acts or things, in each case as the other Party may
reasonably request, in order to permit the recordation of the Notice of
Settlement in the public records of Miami-Dade County, Florida or to carry
out the purposes or intentions of this Settlement Agreement or any Related
Agreement.
27. WAIVER. The waiver by one Party of any breach of this
Settlement Agreement by the other Party shall not be deemed a waiver of any
prior or subsequent breach of this Settlement Agreement.
28. PREVAILING PARTY ATTORNEYS' FEES AND COSTS. In the event any
legal action or proceeding is undertaken to interpret any of the terms of
this Settlement Agreement or any Related Agreement or as a result of an
alleged breach of this Settlement Agreement or any Related Agreement, the
15
prevailing Party shall be entitled to recover all reasonable costs and
expenses of such proceeding or action, including reasonable attorneys' fees
and expenses.
29. LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary in this Settlement Agreement or any Related Agreement, no present
or future constituent partner (except for the present general partner) in
or agent of Arvida/JMB nor any Affiliate or agent of any corporation, trust
or other entity that is or becomes a constituent partner in Arvida/JMB,
shall be personally liable, directly or indirectly, under or in connection
with this Settlement Agreement, or any agreement, instrument, certificate
or other document securing or otherwise executed in connection with this
Settlement Agreement (including any Related Agreement), or any amendments
or modifications to any of the foregoing made at any time or times; and the
Association Parties and each of their respect successors and permitted
assigns does hereby waive any such personal liability. For purposes of
this Settlement Agreement, and any such agreements, instruments,
certificates and other documents, and any such amendments or modifications,
neither the negative capital account of any constituent partner in
Arvida/JMB, nor any obligation of any constituent partner in Arvida/JMB to
restore a negative capital account or to contribute capital to Arvida/JMB
or to any other constituent partner in Arvida/JMB (other than the present
general partner) shall at any time be deemed to be the property or an asset
of Arvida/JMB or any such other constituent partner (and neither the
Association Parties nor any of their respect successors or permitted
assigns shall have any right to collect, enforce or proceed against or with
respect to any such negative capital account or partner's obligation to
restore or contribute). As used in this paragraph, a "constituent
partner" in Arvida/JMB shall mean any direct partner in Arvida/JMB (other
than the present general partner) and any Person that is a partner or
member in any partnership or limited liability company that directly or
indirectly through one or more other partnerships or limited liability
companies is a partner in Arvida/JMB.
30. SURVIVABILITY. The rights and obligations of the Parties in
this Settlement Agreement and each Related Agreement shall survive the
Effective Final Judgment Date and the Closing Date.
31. PROVISIONS SEVERABLE. The terms and provisions of this
Settlement Agreement are severable. In the event that any term or
provision of this Settlement Agreement is determined by an appropriate
judicial authority to be illegal, invalid or otherwise unenforceable, such
term or provision shall be given its nearest legal meaning or be construed
as deleted, as such authority determines, and the remainder of this
Settlement Agreement shall be construed to be in full force and effect.
32. CERTAIN RULES OF CONSTRUCTION. Unless the context otherwise
indicates, the following rules shall apply in construing the provisions of
this Settlement Agreement:
(i) Terms that connote or imply gender shall be construed to
apply to all genders.
(ii) References to paragraphs or Exhibits refer to the
numbered paragraphs of, or the Exhibits attached to, this Settlement
Agreement, and a reference to a numbered paragraph herein includes
all sub-parts of such paragraph (e.g., a reference to paragraph 8
includes paragraphs 8.1 and 8.2 and their sub-parts).
(iii) Terms such as "herein," "hereof," "hereto," "hereunder"
and words of similar import refer to this Settlement Agreement.
(iv) The term "including" connotes "including without
limitation."
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the undersigned have executed this Settlement
Agreement effective the date first written above.
ASSOCIATION PARTIES:
LAKES OF THE MEADOW VILLAGE HOMES
CONDOMINIUM NO. EIGHT MAINTENANCE
ASSOCIATION, INC., a Florida not for
profit corporation, on its behalf and,
to the fullest extent permitted by
applicable law, on behalf of its
members
Witness: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------- By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ------------------------------
---------------------
Print Name Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title: Secretary/Treasurer
------------------------------
COUNSEL FOR THE ASSOCIATION PARTIES:
Reviewed and discussed with the
Association prior to its execution of
this Settlement Agreement
RAFFERTY, HART, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
TENENHOLTZ, P.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Its: Partner
Execution by Counsel for the
Association Parties also evidences its
acceptance of the terms and provisions
of paragraph 10 in this Settlement
Agreement.
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ARVIDA/JMB:
ARVIDA/JMB PARTNERS, L.P.,
a Delaware limited partnership,
d/b/a Arvida/JMB Partners, Ltd.
By: ARVIDA/JMB MANAGERS, INC.,
a Delaware corporation
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Its: President
COUNSEL FOR ARVIDA/JMB:
Reviewed and discussed with the
Arvida/JMB prior to its execution
of this Settlement Agreement
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇,
Professional Association
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Authorized Representative
▇▇▇▇▇▇▇ COIE LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Authorized Representative
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